SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73 Hearing dates: 13, 14, 15, 16, 17, 22, 28 February, 1, 3, 6, 7, 9, 10 March Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt. (2) I find the defendant BSA Limited 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 conducting a business or undertaking – 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 the failure exposed a worker to the risk of death or serious injury – manifestation of the risk is not an element of the offence PROCEDURAL – reasonably practicable measures – whether the defendant knew of, or ought to have known of, the risk PROCEDURAL – sentence hearing – dispute as to facts – dispute as to the existence of risk – dispute as to failure to take reasonably practicable measures to eliminate or minimise the risk – determination of disputed matters upon a sentencing hearing OTHER – worker installing Foxtel satellite dish and set top boxes – existing dangerous fault in wiring of house – worker electrocuted when he came into contact with live wires and an earth underneath the house Legislation Cited: Work Health and Safety Act 2011, s 3, 7,12A, 16, 17, 18, 19, 32, 244, 274, 275 Work Health and Safety Regulations 2017, reg 156 Cases Cited: Alameddine v R [2020] NSWCCA 232 Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 BC v R [2020] NSWCCA 329 Bulga Underground Operations v Nash [2016] NSWCCA 37 Chiang v R [2016] NSWCCA 45 Cowling v R [2015] NSWCCA 213 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 KMC v Director of Public Prosecutions (SA) [2020] HCA 6 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA R v AB [2011] NSWCCA 229 R v Kirkland [2005] NSWCCA 130 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Pearce [2020] NSWCCA 61 R v Wang [2020] NSWSC 1335 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 Strbak v The Queen [2020] HCA 10 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 The Queen v Baden-Clay [2016] HCA 35 at [46], [50]; (2006) 258 CLR 308 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 Texts Cited: Australian Standard AS/NZS 4836: 2011 Safe Working On Or Near Low-Voltage Electrical Installation and Equipment Electrical Hazards When Working in Ceiling Spaces Safety Alert, 11 December 2017 NSW Government Code of Practice, How to Manage Work Health and Safety Risks, August 2019 SafeWork NSW Code of Practice, Managing Electrical Risks in the Workplace, September 2016 WorkCover Code of Practice, How to Manage Work Health and Safety Risks, December 2011 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) BSA Limited (Defendant) Representation: Counsel: J Agius SC with B Docking (Prosecutor) A Moses SC with M Shume (Defendant)