By Laura Sowden, Partner, and Annabel Cheung, Law Graduate

PCBU acquitted of reckless conduct after determination that it did not have a duty to workers it had referred to another company.

The Background

On 21 August 2019, three workers Bishnu Ale Magar, Prasanth Thiruchelvamaran and Kugenthiran Arumugam (the Workers) were undertaking demolition work at a site in Vineyard, New South Wales.

Greater Civil Pty Ltd was engaged as a subcontractor to do the demolition work. Apex Building Systems was the principal contractor. Greater Civil Pty Ltd had asked Astute Earth Works Pty Ltd (the Defendant) to provide the workers.

At different times during the day of the incident, each of the Workers were instructed to get into the bucket of the excavator which was then manoeuvred at various heights to lift the Workers to remove bolts from steel purlins of the structure being demolished. The Workers were not provided any fall protection. While the excavator was moving, the bucket detached and fell. One of the Workers was seriously injured.

In August 2019, Apex Building Systems was fixed $180,000.

In October 2022, Greater Civil Pty Ltd was fined $618,750.

In Dispute

1. Whether the Defendant owed the Workers a health and safety duty; and
2. Whether the Defendant was reckless as to the risk of death or serious injury to an individual.

The Defendant pleaded not guilty to the following charges brought against it:

• that as a person which a health and safety duty it engaged in reckless conduct exposing the Workers to a risk of death or serious injury.[1]
• that as a person with a health and safety duty it failed to comply with that duty and thereby exposed the Workers to a risk of death or serious injury.[2]
• that as a person conducting a business or undertaking that it failed to notify the regulator of a notifiable incident.[3]

Health and safety duty

Under s 19(1) of the Work Health and Safety Act 2011 (the Act) a duty is owed to the workers:

• Who are engaged or caused to be engaged by the Defendant; or
• Whose activities are influenced or directed by the Defendant;
• While the workers are at work in the Defendant’s business or undertaking.

Scotting DCJ considered that the Workers were contractors to the Defendant from time to time. The Workers were free to contract with others, and did so, when the Defendant did not have work for them. It was noted that while the Defendant was central to the Worker’s engagement at the site, it was not necessarily an engagement by the Defendant.

Scotting DCJ was not satisfied beyond reasonable doubt that on the date of the incident the Workers were at work in the business of the Defendant. Importantly this meant His Honour was not satisfied that the Defendant owed the workers a health and safety duty under the Act.

Was the Defendant reckless?

A person conducting a business or undertaking is considered reckless if it foresees a possibility that its conduct could lead to an individual being exposed to a risk of death or serious injury. It was open for the prosecution to provide that the director of the Defendant had the relevant state of mind to establish recklessness.

Scotting DCJ accepted the evidence of the director of the defendant. On the day of the incident, the director attended the work site and was made aware that Greater Civil Pty Ltd intended to use the bucket to lift workers up to do that work. The director noted that this was unsafe, when he later saw that this had in fact occurred, he sought to intervene but was rebuked by Greater Civil Pty Ltd. The director of the Defendant did not take any further steps to prevent the use of the excavator to lift the workers, because he was not involved in the work.

I am satisfied beyond reasonable doubt that that [the director] knew that it was unsafe to lift workers in the bucket of the excavator, because he foresaw the risk that a worker might fall out of the bucket and suffer serious injury or be killed.

Was there a failure to notify the regulator of the incident?

Scotting DCJ determined that the incident was a notifiable incident that was not reported by the director of the Defendant to SafeWork until 4 September 2019. However, his Honour was not satisfied that the incident occurred during the course of the Defendant’s business or undertaking.

The Decision

The Defendant was acquitted of all charges.

Implications

• Businesses in high-risk industries must be aware of their health and safety duty to their workers.
• Be clear on which workers you have engaged in the course of their business or undertaking and what thy have been engaged to do.
• When prosecuted be careful in terms of how you respond to charges, and always obtain comprehensive legal advice.
• Every safety incident can come back to each PCBU, make sure to notify SafeWork immediately if an incident occurs onsite.

SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131

[1] Section 31 Work Health and Safety Act 2011 (NSW).

[2] Ibid s 32.

[3] Ibid s 38.