SafeWork NSW v K & R Fabrications (W’Gong) Pty Limited [2019] NSWDC 238

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v K & R Fabrications (W'Gong) Pty Limited [2019] NSWDC 238 Hearing dates: 7, 8, 9, 10 and 14 May 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements of the offence set out in the Amended Summons filed on 18 April 2019 have been proved beyond a reasonable doubt. (2) I find K & R Fabrications (W'Gong) Pty Ltd guilty of the offence. (3) I will list the matter for a sentencing hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury

PROCEDURAL – 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

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

OTHER – unrestrained bearing housing of gearbox fell on worker causing serious injury – need for bearing housing to be restrained when backing plates of housing were removed – need for SWMS or JSA for task being carried out Legislation Cited: Occupational Health and Safety Act 2004 (Vic) Occupational Health, Safety and Welfare Act 1986 (SA) Work Health and Safety Act 2011 (NSW) Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267 at [68] Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 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 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) K & R Fabrications (W'Gong) Pty Ltd Representation: Counsel: M Cahill (Prosecutor) P Lowson (Defendant) Solicitors: Safework NSW (Prosecutor) Holman Webb (Defendant) File Number(s): 2018/22519