Citation: SafeWork NSW v Civil 1 Pty Ltd [2025] NSWDC 82
Court: District Court of New South Wales
Date: 24 March 2025
Judge: Scotting DCJ
Background
The defendant was the principal contractor engaged in mid-2020 to demolish nine commercial buildings at a site in Gosford. It had engaged a scaffolding subcontractor to supply, install, and eventually dismantle scaffolding erected along two public streets, which also supported Type A hoarding (solid plywood sheeting) required by the development approval to protect pedestrians from demolition debris.
On 18 August 2020, the scaffolders attended to remove the scaffolding entirely, but were forced to stop when an excavator operated by one of the defendant's workers struck an underground power line. After waiting several hours for a repair that was expected to take some time, the scaffolders left. They did not return the following day due to other bookings. At approximately 3:00 pm on 19 August 2020, in high winds that had been forecast, 21 bays of scaffolding spanning approximately 60 metres collapsed onto Mann Street, injuring a bystander and damaging vehicles and infrastructure. Seven workers were on site at the time.
SafeWork NSW prosecuted the defendant on three charges: two offences under section 32 of the Work Health and Safety Act 2011 (WHS Act) for failing to comply with health and safety duties owed to the workers on site and to the injured bystander, and one offence under section 197 of the WHS Act for failing to comply with a prohibition notice issued after the collapse.
Legal Issues
- Whether the defendant failed to comply with its health and safety duties under sections 19(1) and 19(2) of the WHS Act by not taking the measures particularised in the charges (the "reasonably practicable" question).
- Whether any such failure exposed the workers or the bystander to a risk of death or serious injury.
- What area of the site the prohibition notice covered, and what work it prohibited.
- Whether the defendant conducted demolition work within that area after the prohibition notice was issued, contrary to section 197 of the WHS Act.
Decision
Section 32 offences (health and safety duty failures)
The defendant admitted owing duties to both the workers and the bystander. The contest turned on whether the specific safety measures pleaded by SafeWork NSW were "reasonably practicable" in the circumstances. The agreed facts established that the scaffolding had been intended for full removal on 18 August 2020, and that only the electrical incident had prevented this. Those same agreed facts significantly narrowed the relevant timeframe to the period between the scaffolders leaving on 18 August and the collapse at around 3:00 pm on 19 August.
Scotting DCJ found that SafeWork NSW had opened its case on a broader factual basis that could not be sustained once the agreed facts were taken into account. A late amendment application failed. After considering the expert structural engineering evidence in light of those agreed facts, the court was not satisfied beyond reasonable doubt that the pleaded measures were reasonably practicable. The defendant was acquitted on both section 32 charges.
Section 197 offence (breach of prohibition notice)
A prohibition notice was issued on 20 August 2020 following the collapse. The defendant argued that the prohibited work was limited in scope, both in terms of the type of activity (use of a hammer attachment) and the physical area covered. The court rejected that argument. Scotting DCJ accepted Inspector Kearney's evidence as credible and precise, supported by contemporaneous notes, photographs, and the clear language of the notice itself. The construction manager's conflicting accounts of his understanding of the notice were found unreliable and inconsistent with what he had told inspectors in a recorded interview. The court was satisfied beyond reasonable doubt that significant demolition work was carried out within the prohibited area after the notice was issued, and the defendant was convicted.
Orders Made
- The defendant was acquitted of both section 32 offences.
- The defendant was found guilty of the section 197 offence (failing to comply with a prohibition notice).
- The matter was listed on 31 March 2025 to fix a date for sentence and to make final orders on the section 32 offences.
Key Takeaways
- The District Court confirmed that the "reasonably practicable" element of a section 32 WHS Act offence must be assessed against the actual agreed or proven facts, not an assumed or expanded factual matrix. Where the prosecution's pleaded measures cannot be sustained on the agreed facts, acquittal follows regardless of the seriousness of the incident.
- A failed late amendment application illustrates the difficulty prosecutors face when the agreed facts fundamentally shift the factual foundation on which particularised breaches of duty rest.
- Under section 197 of the WHS Act, a conviction for breaching a prohibition notice does not require the prosecution to establish the precise date on which the prohibited work occurred, only that it occurred after the notice was issued.
- Where a defendant's witnesses give evidence inconsistent with their own prior recorded statements to inspectors, courts may reject that evidence as unreliable even absent obvious credibility problems in demeanour.
- Expert engineering evidence will only carry weight to the extent it is consistent with the agreed facts. Where an expert concedes that agreed facts would require reconsideration of their opinions, the court confines its reliance on that evidence accordingly.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32, 197
- 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
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Royall v The Queen (1991) 172 CLR 378
- Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
- SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316