Citation: McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199
Court: District Court of New South Wales
Date: 3 June 2025
Judge: Scotting DCJ
Background
The defendant was the workshop manager at the West Wyalong Quarry in New South Wales, operated by Regional Quarries Australia Pty Ltd. On the morning of 24 May 2021, he was ferrying workers by Nissan 4WD utility vehicle from the workshop to the area where a new crush plant was under construction. The deceased, Matthew Richens, was a welder who had been dropped at the site to perform welding work at the old crush plant nearby.
After alighting and speaking briefly to other workers, the defendant returned to the vehicle to drive back to the workshop to collect jumper leads. He performed a U-turn, turning left. After travelling about 10 metres, the vehicle struck Mr Richens, who was crouching with his back to the vehicle picking up items from the ground. The vehicle drove over Mr Richens. He stood briefly before collapsing, and died at the scene from his injuries.
The prosecution charged the defendant under the Work Health and Safety Act 2011 (the Act), alleging that as a worker with a duty under s 28, he failed to comply with that duty and thereby exposed Mr Richens to a risk of death or serious injury, contrary to s 32. The defendant pleaded not guilty but admitted he owed the relevant duty.
Legal Issues
- Whether the defendant failed to comply with his health and safety duty as a worker, specifically by failing to take steps particularised in the prosecution summons (including keeping a proper lookout and activating the vehicle's amber flashing lights)
- Whether those failures exposed Mr Richens to a risk of death or serious injury
- Whether any such failure was a significant and substantial cause of that exposure to risk
Decision
The court was satisfied beyond reasonable doubt that the defendant failed to keep a proper lookout while performing the U-turn and driving the vehicle forward. Scotting DCJ found that, had the defendant kept a proper lookout, he should have seen Mr Richens before the vehicle moved forward and again immediately before impact. On either occasion, the defendant could have avoided the collision, either by choosing a different path or by driving slowly enough to stop or take evasive action.
On the question of causation, the court applied the test of whether the failure was a significant and substantial cause of the exposure to risk. The defendant's failure to keep a proper lookout satisfied that test. It was found to be an overwhelming cause of the collision.
The court reached a different conclusion on the failure to activate the vehicle's amber flashing lights. Mr Richens had his back to the vehicle throughout and was not in a position to see the lights. Even if the lights had been activated, it was unlikely they would have alerted him in time for evasive action. Furthermore, the failure to keep a proper lookout was so dominant a cause that the flashing lights omission was not, of itself, a significant or substantial cause of the exposure to risk.
Scotting DCJ found all elements of the s 32 offence proved beyond reasonable doubt and entered a finding of guilty. The matter was listed for sentencing on a mutually convenient date.
Orders Made
• The defendant is found guilty of the s 32 offence
• The matter is listed for sentence at a mutually convenient date
Key Takeaways
- The District Court confirmed that a worker (not just a person conducting a business or undertaking) can be convicted under s 32 of the Work Health and Safety Act 2011 for failing to comply with the s 28 worker duty, where that failure exposes another person to a risk of death or serious injury.
- Causation under s 32 requires that the defendant's failure be a significant and substantial cause of the exposure to risk; it does not require that the failure be the sole or dominant cause, though here the failure to keep a proper lookout was treated as an overwhelming cause.
- Where multiple alleged failures are particularised in the prosecution summons, each must independently satisfy the causation requirement. The court acquitted the defendant of the allegation concerning the amber flashing lights because, on the facts, that omission did not independently meet the significant and substantial cause threshold.
- Credit findings materially shaped the fact-finding process. The court declined to give full weight to one prosecution witness's evidence, finding he was not doing his best to give truthful and complete answers, likely due to his close working relationship with the defendant.
- Under s 28 of the Act, a worker's duty extends to taking reasonable care to avoid acts or omissions that could adversely affect the health and safety of others at the workplace, including basic situational awareness such as keeping a proper lookout when operating a vehicle.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 28, 32
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), ss 6, 7A
- Corporations Act 2001 (Cth), s 9AD(1)(b)(i)
Cases
- Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Maloney v Commissioner for Railways (1978) 18 ALR 147
- Neindorf v Junkovic (2005) 80 ALJR 341
- Royall v The Queen (1991) 172 CLR 378
- SafeWork NSW v Alejandro Bocaz [2017] NSWDC 271
- SafeWork NSW v Scharfe [2021] NSWDC 260
- SafeWork NSW v Turner [2020] NSWDC 180
- Seltsam v McNeill [2006] NSWCA 158
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- State of New South Wales v Fahy (2007) 232 CLR 486
- Tame v New South Wales (2002) 211 CLR 317
- Vairy v Wyong Shire Council (2005) 223 CLR 426
- R v Irvine [2009] VSCA 239
- Various unreported magistrates' court decisions (Inspector Dowling v Farmer; Inspector Game v Lucas; Inspector Maddaford v Pontelle; O'Grady v Fernandez; R v Matthew Lever)