Citation: [2026] NSWDC 88
Court: NSW District Court (Criminal jurisdiction)
Date: 8 April 2026
Judge(s): Russell SC DCJ
Background
On 13 February 2022, a worker named Mr Douglas Bennett was seriously injured at a Boral Cement facility in New Berrima, NSW. Mr Bennett was working near a bucket elevator (known as EL13) when its conveyor belt went into an uncontrolled free run and over-sped, causing a fluid coupling to catastrophically explode. He was struck on the head by metal debris from the exploding coupling.
Mr Bennett was not a direct employee of Boral Cement Limited ("Boral"), but rather was employed by Fenner Dunlop Australia Pty Ltd ("Fenner"). The work on EL13 also involved employees and contractors engaged by Nepean Engineering and Innovation Pty Ltd ("Nepean"), as well as two Boral employees. SafeWork NSW, the work health and safety regulator, commenced a prosecution against Boral by filing a summons on 9 February 2024, charging it with a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("WHS Act"). An Amended Summons was filed during the trial, which deleted some of the originally pleaded particulars of the alleged failure to comply with Boral's primary duty of care.
Boral pleaded not guilty. The trial was conducted by judge alone. At issue was whether Boral, as a person conducting a business or undertaking ("PCBU"), had failed to comply with its duty under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers, and whether any such failure exposed those workers to a risk of death or serious injury.
Legal Issues
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Whether Boral failed to comply with its primary duty of care under s 19(1) of the WHS Act, in particular by failing to take reasonably practicable measures to eliminate or minimise the risk of workers being struck by exploding components of the fluid coupling, its guard, or hot hydraulic fluid during work on EL13.
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The scope and content of Boral's duty where concurrent duty holders existed — specifically, where contractors Nepean and Fenner were also involved in the work and may have borne their own safety obligations.
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Whether contractors were acting as agents of Boral under s 244 of the WHS Act, which addresses the attribution of conduct by agents to a PCBU.
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Whether specific failures were established, including failures relating to: the method of installing the belt and mounting buckets; ensuring the belt was balanced before de-isolation; the use of chain blocks; the uncoupling of the main drive motor; the preparation and enforcement of safe work method statements; stopping work and conducting updated risk assessments when a change in work process was identified; consulting with mechanical engineers; and adequately addressing workers' safety concerns.
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Whether any proven failure exposed workers to a risk of death or serious injury, the "exposure" element of a Category 2 offence under s 32 of the WHS Act.
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The nature of the offence as one of strict liability under s 12A of the WHS Act, and the application of the "reasonably practicable" standard.
Decision
The decision was a judge-alone criminal trial. Russell SC DCJ set out in careful detail the approach required: the prosecution bore the onus of proving every element of the offence beyond reasonable doubt, and the defendant was entitled to the presumption of innocence. The judge emphasised the obligation to assess witness reliability and to apply common sense and experience in assessing the evidence, including self-directing on the need for a warning under s 165 of the Evidence Act 1995 (NSW) regarding potentially unreliable evidence.
The court confirmed that the first two elements — that Boral was a PCBU and that it owed a duty to the workers under s 19(1) — were admitted. The contested elements were whether Boral failed to comply with that duty and whether any such failure exposed workers to a risk of death or serious injury.
The Amended Summons alleged an extensive list of reasonably practicable measures Boral could have taken, ranging from ensuring the belt was installed without buckets and then subsequently mounting them, through to using chain blocks to control the belt's rotation, consulting engineers about bucket configuration, and — critically — implementing a requirement that where a change in work process was identified, work would be stopped and an updated risk assessment conducted before proceeding. The prosecution also alleged that Boral failed to adequately heed workers' concerns about what would happen when EL13 was turned on with an unbalanced belt.
As the published text of the judgment is truncated, the court's ultimate findings on each particular and the final verdict cannot be confirmed from the available material. What is clear from the judgment's structure is that the court undertook a methodical element-by-element analysis, paying close attention to the interaction between Boral's obligations as the principal PCBU and those of the concurrent duty holders (Nepean and Fenner), and considering whether the conduct of the contractors could be attributed to Boral under s 244 of the WHS Act.
Orders Made
- The final orders are not available from the truncated text of the judgment. Readers should consult the full decision on NSW Caselaw for the verdict and any consequential orders.
Key Takeaways
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Concurrent duty holders do not diminish the primary duty: Where multiple PCBUs are involved in work, each retains its own obligation under s 19(1) of the WHS Act. The District Court confirmed that engaging contractors to carry out high-risk work does not relieve the principal PCBU of its duty to ensure, so far as reasonably practicable, the health and safety of all workers involved.
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Under s 244 of the WHS Act, contractor conduct may be attributed to the principal PCBU: The judgment examined whether contractors acted as agents of Boral, a provision capable of attributing the conduct (and knowledge) of agents to the principal PCBU. This analysis was central to determining Boral's responsibility in circumstances where it relied on contractors for the work giving rise to the safety risk.
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A duty to manage risks extends to dynamic reassessment when on-site circumstances change: A key particular alleged that Boral failed to implement and enforce a stop-work protocol when a change in the work process was identified, specifically the unbalanced loading of buckets on the conveyor belt. The District Court's consideration of this allegation highlighted that risk management obligations are not confined to pre-commencement planning.
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The "reasonably practicable" standard requires active verification, not mere delegation: Several of the alleged failures involved Boral's omission to confirm that contractors had implemented specific safety measures. This reflected the prosecution's position that a PCBU must take steps to verify that safety controls are actually in place, rather than assuming contractors will independently comply.
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Failing to address workers' safety concerns can form the basis of a prosecution: The prosecution specifically alleged that Boral did not adequately respond to concerns raised by workers about the installation method. In assessing this particular, the District Court treated worker consultation obligations as substantive rather than merely procedural, recognising the connection between unaddressed worker concerns and foreseeable risk.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32, 46, 47, 48, 244, 274, 275
- Work Health and Safety Regulation 2017 (NSW), cll 32–38
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165
Key Cases:
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCA 288
- Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- R v Associated Octel Ltd [1994] 4 All ER 1051
- Constantanidis v R [2022] NSW