Citation: SafeWork NSW v Western Sydney Local Health District (No 2) [2023] NSWDC 491
Court: District Court of NSW
Date: 15 November 2023
Judge: Scotting DCJ
Background
A local health district stood charged under section 33 of the Work Health and Safety Act 2011 with breaching the health and safety duty it owed to two nurses at a hospital. The prosecution alleged that the district failed to adequately manage workplace complaints, concerns and grievances, thereby exposing the nurses to a risk of physical or psychological harm.
The defendant had not yet entered a plea. It brought a notice of motion seeking a stay of proceedings on the grounds that the pleaded case was oppressive and uncertain. SafeWork NSW responded pragmatically by preparing a draft Amended Summons, which resolved the majority of the defendant's concerns and led to the stay application being abandoned.
Three narrower questions about the sufficiency of the draft Amended Summons remained for the court to determine.
Legal Issues
- Whether naming the two nurses in paragraph 8 of the draft introduced a problematic and irrelevant element into the pleading
- Whether paragraph 9 of the draft, which combined the primary and secondary obligations under section 17 of the Act using "and/or" language, was defective
- Whether the use of "and/or" between the sub-particulars of paragraphs 9B, 9C and 9E rendered those particulars uncertain or duplicitous
Decision
Issue 1: Naming the nurses in paragraph 8
The court found that identifying the nurses in paragraph 8 of the draft was not problematic. Even where an irrelevant matter appears in a pleading, it does not become an element of the offence and can be safely disregarded (at [31]-[32]). The court understood the allegation to be that the prosecution would prove breach of duty by reference to the existence of a generic risk of physical or psychological harm in the workplace, arising from the defendant's handling of the relevant grievances, rather than by establishing that any particular condition was actually suffered by either nurse (at [33]-[36]). The answer to this question was "No": the pleading was not problematic on this ground (at [37]).
Issue 2: Rolling up the primary and secondary obligations under section 17
Section 17 of the Act imposes a ranked set of obligations: first, to eliminate risks to health and safety so far as is reasonably practicable; and, only if elimination is not reasonably practicable, to minimise those risks. The defendant argued that combining these two obligations with "and/or" language was inconsistent with the statute's deliberate ordering of priority (at [40]).
The court found the question raised an interesting statutory construction issue but declined to resolve it at this stage. It held that the prosecutor's construction was reasonably arguable as an available reading of section 17 (at [41]). However, the court expressed the view that, on the facts of this case, the relevant risk could not realistically be eliminated because individuals react idiosyncratically to potential stressors regardless of how well a PCBU manages grievances (at [43]). The court observed that the unnecessary alternative alleging elimination was available only complicated matters, and it recommended the prosecutor review its position and, if possible, make an election (at [44]-[45]). The answer on this question was also "No": the pleading was not defective, though simplification was recommended (at [45]).
Issue 3: Use of "and/or" between sub-particulars in paragraphs 9B, 9C and 9E
The defendant accepted that the measures listed in those paragraphs were appropriately pleaded in the alternative, and that proof of any one sub-particular could support a finding that the duty had been breached. On the basis of that concession, the court agreed with the prosecutor that little utility remained in pursuing this question (at [46]-[47]). The court noted that the measures were pleaded both cumulatively and in the alternative, and observed some overlap between them, but left it to the prosecutor to determine how to proceed (at [48]-[49]). The answer was "No": no defect was established (at [50]).
Orders Made
- Leave granted to the prosecutor to file an Amended Summons in the form of the draft, subject to any further amendment consistent with the judgment
- The prosecutor to file the Amended Summons within 7 days of publication of the judgment
- The defendant's Notice of Motion dismissed
- Matter to be judicially managed by Scotting DCJ until further order
- Matter listed for directions on 29 November 2023 at 10:00am
Key Takeaways
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In WHS prosecutions, adequate particulars are essential to a fair hearing. The degree of particularisation required depends on the nature and circumstances of the offence, and the prosecutor must identify the specific measures the defendant was required to take (at [14]-[15]).
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Where a pleading introduces a matter that does not constitute an element of the charged offence, the District Court confirmed that the surplus matter does not become an element merely by appearing in the document, and can be safely disregarded (at [32]).
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A WHS prosecution alleging a psychosocial hazard need not establish that any particular worker suffered an actual condition. Proof of a generic risk of physical or psychological harm from exposure to harmful stress is sufficient to support the allegation (at [33]-[34]).
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Under section 17 of the Act, the obligations to eliminate and to minimise risk are ranked in priority. Where a risk is by its nature incapable of full elimination, rolling both obligations into a single pleading using "and/or" language may unnecessarily complicate proceedings, and the court expressed a preference for the prosecutor to make an election rather than maintain an arguably unviable alternative (at [43]-[45]).
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The use of "and/or" in criminal pleadings has long been described as capable of giving rise to uncertainty and embarrassment. Courts retain a power to require particulars in the interests of justice, and a failure to particularise adequately can, in appropriate cases, lead to dismissal of the charge (at [7]-[8], [18]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- District Court Rules 1973
- Work Health and Safety Act 2011
Cases
- Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344
- Borodin v R [2006] NSWCCA 83.
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Fadden v Federal Commissioner of Taxation (1943) 68 CLR 76
- Johnson v Miller (1937) 59 CLR 467
- Millen v Grove [1945] VLR 259
- Moage Ltd (in liquidation) v Joseph Grant Jagelman and Others [1998] FCA 296
- R v Sepulveda [2003] NSWCCA 131
- R v Stuart NSWCCA unreported 8 March 1996
- Rajendran v R [2010] NSWCCA 322
- S v The Queen (1989) 168 CLR 266
- St Clair v Timtalla Pty Ltd and another (No 2) [2010] QSC 480
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Veysey v R (2011) 33 VR 277