Citation: SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSWDC 48
Court: District Court of New South Wales
Date: 10 March 2025
Judge: Scotting DCJ
Background
The defendant health district operates mental health services across several Sydney hospitals, including a secure ward at Cumberland Hospital. In August 2020, two nurses employed at that ward were involved in an incident in which a patient was placed in seclusion. Complaints about their conduct led to an investigation and a Clinical Review process, and both nurses died in November 2020. The prosecution does not allege that the health district caused their deaths or that either nurse suffered proven psychological or physical harm as a result of the alleged breach.
The prosecution charges the health district with a Category 3 offence under section 33 of the Work Health and Safety Act 2011, alleging a failure to comply with the primary duty of care owed to workers under section 19(1). The prosecution's case is that the investigation and Clinical Review were poorly handled, exposing the nurses to psychosocial hazards, specifically poor organisational justice and inadequate grievance resolution.
A central evidentiary dispute arose during trial. The health district objected to the admission of statements made by the nurses to colleagues and others describing their subjective feelings during the investigation process. The court issued these reasons for admitting that evidence.
Legal Issues
- Whether the nurses' out-of-court statements about their subjective feelings were relevant to proving a breach of the duty under section 19(1) of the Work Health and Safety Act 2011
- Whether proof of actual psychological harm, or evidence of a worker's subjective distress, is admissible to establish the existence of a risk in a section 33 prosecution, or is limited to sentencing
- Whether a focus on what the nurses actually experienced invited impermissible hindsight reasoning in proving the existence of a psychosocial risk
Decision
Issue 1: Relevance of the nurses' subjective feelings statements
The court held that the statements were relevant and admissible. Under section 55 of the Evidence Act 1995, evidence is relevant if it could rationally affect the assessment of a fact in issue. The prosecution's case turns on whether the health district's failure to apply its own policies created or was likely to create a risk of physical or psychological harm to the nurses. Evidence that the nurses were experiencing stress is capable of bearing on whether such a risk existed (at [24]).
Issue 2: Whether subjective distress evidence invites impermissible hindsight reasoning
The court rejected the health district's submission that focusing on the nurses' subjective experience amounted to hindsight reasoning about what specific harm occurred rather than the general class of risk. The court distinguished the present case on the basis that the alleged breach is itself a failure to apply policies to a specific investigative process. Examining what actually occurred in that process was therefore necessary and appropriate (at [24]).
Issue 3: The weight and limits of distress evidence
The court cautioned that proof of stress alone is not sufficient to establish breach. Some stress is inherent in any workplace investigation, even one conducted properly, and the guidance material indicates that stress must be prolonged or severe to give rise to a risk of physical or psychological harm (at [26]). The court also noted that stress affects individuals differently and that foreseeability depends on what the health district knew or ought to have known about the nurses, the psychosocial hazards, and the system of work (at [28]). Medical evidence suggesting the RN suffered from a chronic mental condition and was receiving treatment was found to be relevant to the foreseeability question (at [29]).
Issue 4: Relevance of risk exposure to a section 33 offence
The court declined to accept that proof of exposure to a risk of physical or psychological injury is irrelevant to a section 33 offence. A breach of section 19(1) is established by the existence of a risk, not by the occurrence of harm (at [11]). While evidence directed at proving a risk of death or serious injury or illness would be irrelevant to a Category 3 charge, the court saw no barrier to the prosecution relying on evidence of exposure to a lesser risk of physical or psychological injury (at [30]).
Orders Made
- The nurses' statements of their subjective feelings to others are admissible.
Key Takeaways
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Under the Work Health and Safety Act 2011, a breach of the primary duty of care in section 19(1) is established by the existence of a risk to health and safety; no actual accident or injury needs to have occurred, and "risk" means the mere possibility of danger (at [11]-[12]).
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Where a prosecution alleges failure to apply workplace policies to an investigative process, statements by the affected workers describing their emotional state during that process are capable of rationally affecting whether a psychosocial risk existed, and are therefore relevant and admissible (at [24]).
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Evidence of worker distress does not by itself prove a breach. The District Court confirmed that some stress is inherent in any legitimate workplace investigation, and the prosecution must establish that the stress was of a kind, severity, or duration capable of giving rise to physical or psychological harm (at [26]-[27]).
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Foreseeability of psychological harm from a psychosocial hazard depends on what the person conducting the business or undertaking knew or ought to have known about the worker's circumstances, the hazards present, and the system of work, with particular relevance where a worker has an existing mental health condition (at [28]-[29]).
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The District Court drew a clear distinction between evidence admissible to prove a Category 3 offence (exposure to a lesser risk of physical or psychological injury) and evidence going to exposure to risks of death or serious injury or illness, which would be irrelevant to such a charge (at [30]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Work Health and Safety Act 2011
Cases
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
- Tame v New South Wales (2002) 211 CLR 317
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94