By Dr Laura Sowden, Partner and Amber Zhang, Paralegal

Sole traders who operate small usness unincorporated need to be aware that they are persons conducting a business of undertaking (PCBU) under WHS legislation and that in the event of an incident or other breach of their WHS obligations – the consequences can be serious.

SafeWork NSW v Bennett [2022] NSWDC 332

Sole Trader PCBU found guilty of Category 2 Offence for lack of risk minimisation towards worker and other persons.

 The Background

Mr Nigel Bennett (Mr Bennett) was contracted to operate a crane to load a dismantled centrifuge onto a flatbed truck at Moss Vale Sewerage Treatment which was owned and operated by Wingecarribee Shire Council.

Mr Kane Druce (Mr Druce) was employed by Mr Bennett and allocated to work at the site. Mr Bennett had not arrived when Mr Druce arrived on site. Mr Druce proceeded to operate the crane. The boom of the crane came into contact with overhead power lines causing injuries to two workers Mr Peter Voight (Mr Voight) and Mr Gregory Whitford (Mr Whitford).

In Dispute

1. Whether Mr Bennett was conducting a business or undertaking?

2. Did Mr Bennett owe Mr Voight, Mr Whitford and Mr Druce a health and safety duty under s 19(1) or s 19(2) of the Work, Health and Safety Act 2011 (NSW)?

3. Whether Mr Bennett contravened the duty of care by failing to take any of the reasonably practicable steps?

4. Did the breach expose the men to a risk of death or serious injury contrary to s 32 of the Act?

 Reasoning

Mr Bennett was conducting a business as a crane supplier and operator of Highland Cranes and was therefore a PCBU. Highland Cranes was a business name and the business was not operated by a corporate entity.

As a PCBU, Mr Bennett owed a duty under s 19 of the Act. Section 17 of the Act requires that the PCBU to eliminate risks to health and safety so far as is reasonably practicable

The court considered the following reasonably practicable measures which Mr Bennett should have taken:

• Forbid Mr Druce, an unqualified driver, to operate the crane
• Provided an appropriately qualified crane driver
• Instructed Mr Druce to undergo a site induction prior to commencing work
• Required and instruct Mr Druce to perform a joint safety assessment prior to commencing work
• Confirmed that the mobile crane was set up in an appropriate location of the site and not within the vicinity of overhead power lines prior to operation
• Required and instructed Mr Druce to perform no working the vicinity of the power lines without a person acting as a dedicated spotter.
• Provided or required that a qualified dogman was on site to assist with the crane operations at the site
• Conducted a site-specific risk assessment to identify the hazards of crane works at the site

The Court determined that the acts or omissions of Mr Bennett were a substantial or significant cause of Mr Voight, Mr Whitford and Mr Druce being exposed to the risk of injury.

 The Decision

Mr Bennett was found guilty of a Category 2 Offence pursuant to s 32 of the Act.

Mr Bennett was conducting a business or undertaking and owed Mr Druce a health and safety duty under s 19(1) of the Act and owed Mr Voight and Mr Whitford a health and safety duty under s 19(2) of the Act.

Mr Bennett failed to comply with those duties and exposed Mr Druce, Mr Voight and Mr Whitford to a risk of death or serious injury.

The next phase will be to make a sentencing decision now that a verdict of guilty has been entered against Mr Bennett.

Implications

PCBUs, including sole traders, should and must be aware of the risks and the reasonably practicable means available to ensure safety. This would prevent a breach of duty from occurring and being a significant or substantial contributing factor to the risk of injury. Whilst it may not possible to eliminate the risk, it must be minimised so far as reasonably practicable in accordance with s 17 of the Act.