Citation: SafeWork NSW v Stitt [2024] NSWDC 255
Court: District Court of New South Wales
Date: 28 June 2024
Judge: Scotting DCJ
Background
The defendant was a licensed builder operating a sole trader construction business in Sydney's eastern suburbs. He engaged workers, including a casual labourer supplied through a labour hire company, to erect a mobile scaffold tower at a residential property in Point Piper. The work was required to facilitate the installation of a gas flue extension up the side of a three-storey house.
On 9 September 2019, workers erected the scaffold to a height of 8.65 metres, with two work platforms positioned more than four metres above ground level. This was significant because the relevant regulations require a high risk work licence (HRWL) for scaffolding work at that height. None of the workers involved held such a licence.
Two days later, on 11 September 2019, the same workers returned to dismantle the scaffold. During dismantling, one worker attempted to pass a 25-kilogram platform to another worker who was standing on top of a boundary wall. When the receiving worker lost balance, the first worker leaned against a horizontal brace of the scaffold to steady himself. The brace gave way. He fell approximately 5.75 metres and suffered fatal head injuries.
Legal Issues
- Whether the defendant failed to comply with his health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) by failing to take the steps particularised in the prosecution summons (Element 3).
- Whether the defendant's breach of duty exposed the deceased worker to a risk of death or serious injury under section 32 of the Act (Element 4).
Decision
The defendant did not contest that he owed a health and safety duty or that he was a person conducting a business or undertaking. The contested questions were whether specific failures in the prosecution summons were established and whether those failures caused the relevant risk.
The court found, beyond reasonable doubt, that the defendant failed to take several of the reasonably practicable steps particularised in the summons. Critically, the court was satisfied that the defendant saw the scaffold on 9 September 2019 after it had been erected to 8.65 metres and knew from that point that a licensed scaffolder was required for dismantling. Despite this knowledge, the defendant failed to engage one.
The court further found that, had a licensed scaffolder been engaged to dismantle the scaffold, the deceased worker would not have been required to access it at all and would not have been exposed to the risk. On that basis, causation was established in respect of the failure to engage a licensed scaffolder and the associated particularised failures. The court was not satisfied, however, that a failure to have a competent person inspect the scaffold after erection was itself a cause of the risk.
The defendant was found guilty of the section 32 offence. The matter was listed for sentencing on a date to be fixed.
Orders Made
- The defendant was found guilty of the section 32 offence under the Work Health and Safety Act 2011.
- The matter was listed for sentence on a date convenient to the parties.
Key Takeaways
- The District Court confirmed that a person conducting a business or undertaking (PCBU) can be criminally liable under section 32 of the Work Health and Safety Act 2011 where failures to take reasonably practicable steps expose a worker to a risk of death or serious injury, even where the PCBU is a sole trader builder.
- Under the Work Health and Safety Regulation 2017, a high risk work licence is required where a scaffold is erected such that a person or object could fall more than four metres from a work platform. A defendant's awareness that this threshold had been exceeded is relevant to establishing culpability for subsequent dismantling work.
- Causation was established where the prosecution proved that, but for the failure to engage a licensed scaffolder, the deceased worker would not have been required to access the scaffold at all. The specific causal chain connecting the breach to the risk was a central factual issue.
- Not every particularised failure will be found to be a cause of the relevant risk. The court declined to find causation in relation to the failure to have the scaffold inspected after erection, on the basis that a compliant inspection process would likely have led to the engagement of a licensed scaffolder, removing the need for the deceased to access the structure.
- A defendant's actual knowledge of a regulatory breach on a worksite is a factual matter the court will assess closely. Where actual knowledge is not established beyond reasonable doubt, the court may nonetheless find constructive awareness through inadequate supervision.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 5, 81, Schedule 3, Table 3.1
- Occupational Health and Safety Act 2000 (NSW)
Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Royall v The Queen (1991) 172 CLR 378
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- 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
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117