SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668 Hearing dates: 6-10 July 2020; 13-17 July 2020; 20-23 July 2020; 5-7 August 2020; 13 August 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements set out in the Second Amended Summons dated 24 July 2020 have been proved beyond reasonable doubt. (2) I find the defendant McConnell Dowell Constructors (Aust) Pty Limited guilty. (3) The matter will be listed for a sentence hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER — Unrestrained steel headstock fell on rigger working on a barge — no adequate risk assessment for landing headstocks on barge and working upon them — deck space not cleared to lay headstocks down — no visual inspection of barge despite contractual inspection obligation on defendant Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 38 Mines Safety and Inspection Act 1994 (WA), s 9, s 19 Occupational Health and Safety Act 2004 (Vic), s 21 Occupational Health, Safety and Welfare Act 1986 (SA), s 24 Work Health and Safety Act 2011 (NSW), 3, 7, 12, 16, 17, 18, 19, 20, 21, 32, 244, 275 Work Health and Safety Regulations 2011 (NSW), cl 315 Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57 Hamersley Iron Pty Ltd v Robertson (Unreported, Supreme Court of Western Australia, Steytler J, 2 October 1998) Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 R v Associated Octel Ltd [1994] 4 All ER 1051 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Texts Cited: WorkCover Construction work code of practice dated July 2014 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) McConnell Dowell Constructors (Aust) Pty Limited (Defendant) Representation: Counsel: J Agius SC with M Cahill (Prosecutor) B Hodgkinson SC with W Thompson (Defendant)