SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290 Hearing dates: 27-29 March 2017; 5 April 2017; 11-13 April 2017; 7 September 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Kearns DCJ Decision: The elements of the offence have been proved beyond reasonable doubt against Freyssinet Australia Pty Ltd. I find Freyssinet Australia Pty Ltd guilty of the offence. I will list the matter for sentence on a date convenient to the parties. Catchwords: CRIMINAL LAW – work health and safety – construction site – head contractor – defendant one of several sub-contractors – numerous workers on site – injured person employed by defendant fell from stairway – stairway and access used by all workers – responsibility for stairway – adequacy of edge protection on stairway – whether risk existed and was foreseeable – reasonably practicable measures available to the defendant Legislation Cited: Work Health and Safety Act 2011 Cases Cited: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 Category: Principal judgment Parties: SafeWork New South Wales (prosecutor); Freyssinet Australia Pty Ltd (defendant) Representation: Counsel: Mr I Taylor SC with Mrs E James appeared for the prosecutor; Mr A Moses SC with Mr D O'Neil and Ms J Alderson appeared for the defendant

Solicitors: SafeWork NSW Legal Services (prosecutor); HWL Ebsworth Lawyers (defendant) File Number(s): 2016/44806

JUDGMENT

The incident 1. On 10 February 2015 at a worksite at 19-33 Kent Road, Mascot (the site), Mr Oketi Felemi and fellow workers were walking down a stairway (the stairway). The landings of the stairway had timber handrails. When descending the steps close to a landing, Mr Felemi lost his footing. He fell vertically more than three metres from the open side edge of the landing on the stairway onto the bottom landing. Mr Felemi landed on his head and suffered serious brain and other injuries. The charge and the plea 1. Freyssinet Australia Pty Ltd (Freyssinet) is charged with an offence under s 32 of the Work Health and Safety Act 2011 (the Act). It is alleged that on 10 February 2015 Freyssinet was a person conducting a business or undertaking within the meaning of s 19 and that it had a health and safety duty under that section. It is further alleged that the duty was to ensure, so far as was reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking. It is further alleged that it failed to comply with that duty and that the failure exposed Mr Felemi to a risk of death or serious injury. 2. Freyssinet has pleaded not guilty.