SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89 Hearing dates: 28 February, 1, 2, 3, 8 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt. (2) I find the defendant Arkwood (Gloucester) 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 persons 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 —defendant engaged contractor to operate a crane to load the dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two workers employed by the defendant suffered electric shocks – failure to conduct a site-specific risk assessment – no appropriate SWMS – failure to adequately instruct and train employees – failure to observe and warn crane operator – failure to insist upon using a qualified dogman Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133 Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299 Work Health & Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 23C, 32, 155, 244, 275 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 Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 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 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668 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 Texts Cited: WorkCover Code of Practice 2006, "Work Near Overhead Power Lines" Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Arkwood (Gloucester) Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) M Baroni (Defendant)