SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255 Hearing dates: 12, 13, 14, 15, 18, 19 June 2018; 18 July 2018 Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The elements of the offence have been proved beyond reasonable doubt. 2 I find the defendant guilty of the offence. 3 I will list the matter for a sentence hearing at a date convenient to the parties. 4 I intend to consider the making of an adverse publicity order pursuant to section 236 of the Act. The parties should be in a position at the sentence hearing to adduce evidence on: (a) the information to be published; (b) the medium or media by which the information should be published; (c) the likely reach of the publication(s); and (d) the costs involved with such publication(s). Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee CRIMINAL LAW – causation – whether pleaded failure caused exposure to risk – whether worker's carelessness severed chain of causation CRIMINAL PROCEDURE – pleadings – particularisation – relevant time period EVIDENCE – standard of proof – criminal cases – whether prosecution must prove all relevant facts beyond reasonable doubt WORK HEALTH AND SAFETY – whether duty owed to specialist subcontractor – construction of pleaded risk – whether risk objectively known and obvious – whether causation of injury is an element of offence under Work Health and Safety Act 2011 (NSW) s 32 WORDS AND PHRASES – "while at work in the business or undertaking" – Work Health and Safety Act 2011 (NSW) s 19(1) OTHER – mustering sheep – whether chasing dingoes part of mustering work – riding motorcycle without helmet – fall from motorcycle – head and spinal injuries causing death – whether wearing helmet reasonably practicable Legislation Cited: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Cases Cited: Archer v Simon Transport Pty Ltd [2016] QCA 168 Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Boland v Safe is Safe Pty Ltd and Munro [2017] SAIRC 17 Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358 Bowler v Hilda Pty Ltd (1998) 80 FCR 191 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33] Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 R v ACR Roofing Pty Ltd (2004) 11 VR 187 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Rech v F M Hire Pty Ltd (1998) 83 IR 293 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Wagga Motors Pty Ltd [2018] NSWDC 242 Shepherd v The Queen (1990) 170 CLR 573 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67] WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Texts Cited: Reducing Risk of Injury Associated with Farm Vehicles in Australia Farm Vehicles 2 and 4 wheeled Motorbikes Vehicle Injury associated with Australian Agriculture: The Facts 2008 Good Practice Guidelines on the Safe use of two-wheeled motorbikes on farms Managing the Risks of Plant in the Workplace Guidance Note on Ag bike safety Category: Principal judgment Parties: SafeWork NSW v KD & JT Westbrook Pty Limited Representation: Counsel: M Moir (SafeWork) D Nagle with A Guy (Defendant)