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District Court 1 May 2023

SafeWork NSW v Astute Earth Works Pty Ltd

[2023] NSWDC 131

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131
Court: District Court of New South Wales
Date: 1 May 2023
Judge: Scotting DCJ

Background

On 21 August 2019, three workers were engaged in demolition work at a site in Vineyard, NSW. The principal contractor, Apex Building Systems, had engaged Greater Civil to carry out the demolition. At some point during the day, two of the workers were lifted in the bucket of a Caterpillar excavator to reach structural steel purlins. Neither worker was provided with any fall protection. The bucket detached from the excavator's jib and fell to the ground. One of the workers, referred to in the judgment as Kanna, sustained serious injuries and was hospitalised for ten days, requiring surgery.

SafeWork NSW prosecuted Astute Earth Works Pty Ltd, a labour-hire and demolition subcontractor whose sole director was Ramzi Mohamed. The prosecution alleged that Astute had supplied the workers to the site and therefore owed them a health and safety duty as a person conducting a business or undertaking under s 19(1) of the Work Health and Safety Act 2011 (the Act).

Astute denied any involvement in or control over the work at the site, arguing that the workers had been engaged directly by Greater Civil and that Astute bore no responsibility for what occurred. It was common ground that if Astute did owe a duty, that duty was breached and the breach exposed the workers to a risk of death or serious injury.

  • Whether Astute owed the workers a health and safety duty under s 19(1) of the Act, as a person conducting a business or undertaking
  • Whether, if such a duty existed, Astute acted recklessly within the meaning of s 31 of the Act (the primary charge)
  • Whether, in the alternative, Astute failed to comply with that duty contrary to s 32 of the Act (the secondary charge)
  • Whether Astute failed to notify SafeWork NSW of a notifiable incident as required by s 38 of the Act

Decision

The central factual contest was whether Astute had engaged the workers and directed them to the site, or whether Greater Civil had engaged them independently. The court undertook a detailed witness-by-witness analysis, noting that most witnesses required interpreters and that much of the oral evidence was contradictory. Key documentary evidence included induction records signed by the workers on 20 August 2019 in which each nominated Astute as their employer, and text messages from Ramzi sending the workers the site address the evening before work commenced.

On the question of duty, the court ultimately was not satisfied beyond reasonable doubt that Astute owed the workers a health and safety duty under s 19(1) of the Act. The court's reasoning turned on whether Astute was a person conducting a business or undertaking with a sufficient connection to the workers and the work performed at the site. Despite the induction records and Ramzi's communications, the prosecution could not establish this element to the required standard.

On the recklessness question under s 31, the court found that Ramzi, as Astute's directing mind, was aware the workers were being lifted in the excavator bucket and foresaw the risk of serious injury or death. The court was satisfied beyond reasonable doubt that he took no steps to prevent the practice from continuing. However, because the threshold question of duty was not established, this finding could not sustain a conviction.

Regarding the s 38 notification offence, the court accepted that the incident was a notifiable incident and that Ramzi had not reported it to SafeWork until 4 September 2019, well after the immediate reporting obligation arose. However, as with the other charges, the court was not satisfied that the notifiable incident arose in the course of Astute's business or undertaking. All three charges therefore failed on the same foundational element.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that the prosecution must prove beyond reasonable doubt that the defendant was a person conducting a business or undertaking with the requisite connection to the workers and the work. Without that foundation, neither the substantive safety duty offences nor the notification offence can be established.

  • A finding of recklessness under s 31 of the Work Health and Safety Act 2011 requires the prosecution to prove that the defendant continued conduct with knowledge of the possibility that it would expose an individual to a risk of death or serious injury. The court found those facts established here, but the acquittal followed from the failure of the threshold duty element rather than from any difficulty with the recklessness analysis.

  • Under s 38 of the Act, the obligation to notify the regulator of a notifiable incident applies only where the incident arises out of the conduct of the defendant's own business or undertaking. This mirrors the same duty nexus required for the substantive offences under ss 31 and 32.

  • Where a defendant's sole director is present at the time of a workplace incident and fails to immediately report it to the regulator, the court treated the director's knowledge and inaction as directly attributable to the company for the purposes of the notification obligation, contingent on the duty nexus being established.

  • Induction records and text message communications directing workers to a site are relevant but not necessarily conclusive evidence that a labour-hire entity owed those workers a health and safety duty under s 19(1) of the Act.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 38
- Work Health and Safety Regulation 2013 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Royall v The Queen (1991) 172 CLR 378
- Aubrey v R (2017) 260 CLR 305
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467