SafeWork NSW v Bennett [2022] NSWDC 332

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Bennett [2022] NSWDC 332 Hearing dates: 1, 2, 3 August 2022 Date of orders: 12 August 2022 Decision date: 12 August 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Proceedings 2020/303207 – The Section 19(1) Summons (1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt. (2) I find the defendant Mr Nigel Bennett guilty. (3) The matter will be listed for a sentence hearing on a date convenient to the parties. Proceedings 2020/303225 – The Section 19(2) Summons (1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt. (2) I find the defendant Mr Nigel Bennett 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 CRIMINAL LAW – 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 – whether that failure exposed other persons to the risk of death or serious injury CRIMINAL LAW – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER – defendant engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 38 Work Health & Safety Act 2011 (NSW) ss 3, 7, 12A, 16, 17, 18, 19, 32, 275 Work Health and Safety Regulation 2017 (NSW) cll 166, 291, 299 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 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 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 Texts Cited: WorkCover NSW Code of Practice, Work Near Overhead Power Lines, 2006 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Nigel Bennett (Defendant) Representation: Counsel: M Scott (Prosecutor) Self-represented (Defendant)