Citation: SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400
Court: District Court of New South Wales
Date: 2 October 2025
Judge: Scotting DCJ
Background
Momentum Consulting Group Pty Ltd operated a labour hire business that placed workers with host employers. In early 2022, two of its workers, Mr Krupowicz and Mr Fifita, had been placed to work at a retail furniture warehouse in Pemulwuy operated by Saveba Pty Ltd (trading as Coco Republic). On the evening of 9 February 2022, both men were operating electric pallet riders (motorised warehouse vehicles) when they collided in an area of the warehouse known as the hardstand. Neither had received adequate training from Saveba on operating pallet riders at that site.
Mr Krupowicz suffered a severe crush injury and compound fracture to his right foot. The injury ultimately required amputation of his right leg below the knee.
SafeWork NSW prosecuted Momentum under section 33 of the Work Health and Safety Act 2011 (NSW), alleging that the company had failed to comply with its health and safety duty under section 19(1) of that Act. Momentum pleaded not guilty, admitting the duty existed but contesting whether it had breached that duty and raising a defence of honest and reasonable mistake of fact.
Legal Issues
- Whether Momentum failed to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 by not taking the reasonably practicable steps particularised in the summons (Element 2 of the offence)
- Whether Momentum had established the defence of honest and reasonable mistake of fact
Decision
Scotting DCJ found that Momentum had failed to take reasonably practicable steps to ensure the health and safety of Mr Krupowicz. Central to this finding was the inadequacy of Momentum's own systems for assessing workplace health and safety risks at the host employer's site. The company's account manager, Ms Richards, was not adequately trained in Momentum's WHS obligations, did not know what to look for when visiting a warehouse, and was unaware that pallet riders were being used at the Saveba site during the relevant period.
The court found that Momentum had failed to make adequate enquiries, both of the host employer and of its own placed workers. The defendant had access to knowledge held by those workers about conditions at the warehouse but did not draw on it. The court determined that a combination of inadequate training of the account manager, infrequent site attendance, and a failure to systematically inquire about mobile plant use collectively meant the company did not meet the standard required.
On the honest and reasonable mistake defence, Scotting DCJ was not satisfied the defence had been made out. The court accepted that Ms Richards may not have known pallet riders were in use at the site, but found that her ignorance was not a reasonable mistake in the circumstances. Because Momentum had not properly trained her or put in place adequate enquiry processes, any mistaken belief she held about site conditions could not be characterised as reasonable.
The court was satisfied beyond reasonable doubt that all elements of the offence under section 33 had been established and that the defence had not been made out. Momentum was found guilty. The matter was listed for sentencing on a date to be fixed.
Orders Made
• The defendant is found guilty of the s 33 offence
• The matter is listed for sentence on a convenient date
Key Takeaways
- A labour hire business (as a person conducting a business or undertaking) bears an ongoing primary duty under section 19(1) of the Work Health and Safety Act 2011 to ensure the health and safety of its placed workers, even when those workers operate day-to-day under the supervision of a host employer.
- Inadequate internal training of account managers responsible for WHS assessments contributed directly to a finding that the defendant failed to take reasonably practicable steps. The duty is not discharged by simply relying on what a host employer does or does not disclose.
- The honest and reasonable mistake defence requires that the mistaken belief itself be reasonably formed. Where a defendant's ignorance of risk arises from its own failure to train staff or make adequate enquiries, the belief is unlikely to qualify as reasonable.
- Knowledge held by a labour hire company's own placed workers about conditions at the host employer's site is, on the court's reasoning, imputed to the company for the purposes of assessing whether adequate enquiries were made.
- The District Court confirmed that the defence of honest and reasonable mistake of fact failed where the defendant did not take into account all relevant information available and known to it, including through its own employees.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33, 155
Cases
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- He Kaw Teh v R (1985) 157 CLR 523
- 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
- Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
- Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
- Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
- Brambles Holdings Ltd v Carey (1976) 15 SASR 270
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
- Allen v United Carpet Mills Pty Ltd [1989] VR 323
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209