SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 76

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 76 Hearing dates: 19, 20, 21, 25, 26, 28 February 2019; 1 March 2019 Date of orders: 25 March 2019 Decision date: 25 March 2019 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The elements of the section 32 offence by the defendant's breach of section 19(1) of the Act have been proved beyond reasonable doubt. 2 I find the defendant guilty of that offence. 3 It is unnecessary to make any findings as to the section 32 offence alleging a breach of section 20 of the Act because it was an alternative charge. 4 I will list the matter for a sentence hearing at a date convenient to the parties. Catchwords: CRIME – prosecution – work health and safety – duty of persons with management or control of a workplace– risk of serious injury – workers injured

WORK HEALTH AND SAFETY – whether defendant had knowledge of the risk – whether reliance on specialist contractor reasonable – whether defendant had knowledge of the need for a major inspection of the building maintenance unit – whether cost involved was disproportionate to the risk – causation

OTHER – work at heights – window cleaning – building maintenance unit – load bearing bolts fractured – building maintenance unit fell 25 metres – landed on awning Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6]. 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). Houghton v Arms (2006) 225 CLR 553 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 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 Mahmood v Western Australia (2008) 232 CLR 397 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen (1991) 172 CLR 378 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 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 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 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 Category: Principal judgment Parties: SafeWork NSW (Prosecution) Investa Asset Management (Defendant) Representation: Counsel: J Agius SC with M Moir (Prosecution) P Strickland SC with D Nagle and J Adamopoulos (Defendant)