Make sure that your defence team knows the right numbers   

October 2016 – NSW 

A recent case was decided by the defence knowing the right numbers.   

The District Court of NSW has ordered that a WHS charge be dismissed and costs paid by SafeWork NSW, as the Prosecutor, after it was determined the charge was "inappropriate to the circumstances". The decision of SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237 has clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW) (the Act). The wrong section of the act was used for the prosecution.   

SafeWork charged Rawson under s 19(2) of the Act,  alleging a failure to "ensure, so far as practicable, the health and safety of other persons is not put at risk from work carried out". This is distinct from the positive duty under s 19(1) "to ensure, so far as reasonably practicable, the health and safety of workers".   

Rawson Homes was the principal contractor for a residential construction site in Orange, NSW. They engaged a specialist contractor, Regal Concreting, to facilitate and pour the concrete slab for the house, and Regal, in turn, sub-contracted Dagmar for the supply and operation of a concrete boom pump.   

One of the outrigger support legs on the pump fractured, resulting in the uncontrolled fall of the boom, which hit and injured a Regal employee.   

A not guilty plea was entered by Rawson Homes and two arguments were put forward as part of the defence:   

·         the substantive charge could not be proven beyond reasonable doubt as the particulars of what Rawson could have allegedly done to address the risk were not reasonably practicable and, even if implemented, would not have alleviated the risk given they were relying on an expert contractor, and   

·         Rawson was charged under the wrong section as all persons allegedly exposed to a risk indisputably met the express definition of "workers" as employees of Regal.   

The presiding judge, Kearns J, agreed with the position advanced by Sparke Helmore and accepted that Rawson's submission allows for workers and others on workplace premises to be protected by duties owed to them under s 19 of the Act. It was also noted that this technical argument was a "knockout" point, meaning the charge was dismissed without having to consider other substantive arguments. 

http://www.sparke.com.au/insights/whs-charge-dismissed-on-knockout-point/