SafeWork NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35 Hearing dates: 8, 9, 10,11,15, 16 February 2021 Date of orders: 3 March 2021 Decision date: 03 March 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements set out in the Summons filed on 7 March 2018 have been proved beyond reasonable doubt. (2) I find the defendant Rockfield Contracting Pty Ltd guilty. (3) The matter will be listed for 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 — drill string and drill head containing stored energy broke free from earth and struck fatal blow to worker – need for exclusion zone, observation of whether worker positioned in danger zone, personal protective equipment Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133 Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12, 16, 17, 18, 19, 32, 230, 244 Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 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 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 SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd (No. 2) [2020] NSWDC 668 Texts Cited: SafeWork NSW Code of Practice "Managing the risks of plant in the workplace" dated July 2014 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Rockfield Contracting Pty Limited (Defendant) Representation: Counsel: M Cahill (Prosecutor) M Shume (Defendant)