Citation: SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231
Court: District Court of New South Wales
Date: 20 June 2024
Judge: Strathdee DCJ
Background
Rahme Civil Pty Ltd, a civil works contractor, was engaged by a principal contractor to carry out partial demolition and excavation works at a residential property in North Bondi. The company's director, Rabih Rahme, was also prosecuted in his capacity as an officer of the company. There was no written contract between Rahme Civil and the principal contractor.
On 14 December 2020, a semi-constructed masonry brick wall collapsed onto a 23-year-old leading hand employed by Rahme Civil. The worker was struck by the falling wall and landed on a protruding metal screw piling, which penetrated his body. He suffered a laceration to the back of his head requiring 13 staples, chest wall penetration requiring surgical repair, and severe bruising to his torso and arms. He was transported to St Vincent's Hospital.
SafeWork NSW filed summonses on 14 December 2022 charging both Rahme Civil and Mr Rahme with Category 2 offences under section 32 of the Work Health and Safety Act 2011 (NSW). Neither defendant appeared in the proceedings. The court was satisfied, based on affidavit evidence, that both defendants were aware of the proceedings and chose not to attend. The matter proceeded as an ex parte hearing, with the defendants treated as having entered pleas of not guilty.
Legal Issues
- Whether Rahme Civil, as a person conducting a business or undertaking (PCBU), breached its duty under section 19(2) of the WHS Act to ensure the health and safety of other persons was not put at risk from work carried out in its undertaking.
- Whether Mr Rahme, as an officer of Rahme Civil, breached his duty under section 27(1) of the WHS Act to exercise due diligence to ensure the company complied with its health and safety duties.
- Whether those failures exposed workers and other persons to a risk of death or serious injury, thereby constituting Category 2 offences under section 32 of the WHS Act.
- Whether the court could proceed to determine the matter in the defendants' absence under section 250 of the Criminal Procedure Act 1986 (NSW).
Decision
The court was satisfied that the prosecution had established, beyond reasonable doubt, each element of the offences against both defendants. The risk was identified as workers and other persons being struck or trapped by collapsing masonry brick walls during excavation and demolition works. The wall that fell on the injured worker was precisely that kind of hazard.
Rahme Civil failed to comply with its duty under section 19 of the WHS Act. The court found the company did not take reasonably practicable steps to manage the risk posed by existing masonry brick walls on the site, including failing to obtain engineering assessments, failing to develop and enforce safe work methods for demolition and excavation, and failing to inform workers of the risk of wall or foundation collapse.
Mr Rahme similarly failed to exercise due diligence as required by section 27(1). The court found he failed to take a range of reasonable steps, including arranging for an engineering assessment of the walls, verifying the implementation of safe work systems, and ensuring workers were informed of the relevant risks. Those failures were found to be a significant or substantial cause of the two workers being exposed to the risk of death or serious injury.
The court proceeded ex parte under section 250 of the Criminal Procedure Act 1986 (NSW), on the basis that the defendants had chosen not to appear despite being aware of the proceedings. The prosecution standard of proof beyond reasonable doubt was applied throughout.
Orders Made
- Rahme Civil Pty Ltd is convicted.
- Rabih Rahme is convicted.
- The matter is listed for a sentencing hearing on a date to be fixed.
Key Takeaways
- A company conducting demolition and excavation works can be convicted under section 32 of the WHS Act where it fails to take reasonably practicable steps to manage the risk of masonry wall collapse, even in the absence of a written contract with the principal contractor.
- Under section 27(1) of the WHS Act, an officer's due diligence duty is an active one. The District Court found it required steps such as arranging engineering assessments, verifying safe work systems were implemented, and ensuring workers were informed of site-specific hazards.
- Where defendants are aware of WHS prosecution proceedings but choose not to attend, the court may proceed to hear and determine the matter ex parte under section 250 of the Criminal Procedure Act 1986 (NSW), applying the full criminal standard of proof.
- Both the corporate entity and its officer can be convicted of separate Category 2 offences arising from the same incident, where each has an independent statutory duty and each has independently failed to comply with that duty.
- Conviction on a Category 2 WHS offence does not resolve the question of penalty. A separate sentencing hearing is required, meaning the financial and other consequences for both defendants remain to be determined.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1), 19(2), 27(1), and 32
- Criminal Procedure Act 1986 (NSW), section 250
Cases Cited
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA
- Thiess Pty Ltd v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252