Which case won?

The case for SafeWork NSW
  • The panel company’s obligation to install the panels extended to directing bundles of panels being lifted by crane to certain areas of the site. The company even supplied the pallet hook, and at all material times had control of the panels and the pallet hook.
  • It was reasonable for the labourer to assume that attaching the pallet hook to the bundles was in the ambit of the work he was hired to do. Attaching the pallet hook to the bundles was essential to ensure that the work the panel company was contracted to do would not grind to a halt.
  • Also, at the time of the incident, the panel company’s supervisor was on site. He knew, or should have known, that the panel company’s labourer was attaching the pallet hook to the bundles. If this was not appropriate, he would have stopped him.
  • After the incident, the site supervisor even completed an injury report, which appears to accept that the cranage had been part of the panel company’s business on site.
  • Since the cranage work performed by the labourer was “work carried out as part of the conduct of the [panel company’s] business or undertaking,” the panel company is guilty of breaching its workplace health and safety duty.
The case for the panel company
  • The terms of our contract with the principal contractor clearly state that we were only engaged to install the panels.
  • The incident that occurred was the result of the operation of the crane. We were not contractually obliged to operate the crane.
  • The cranage company had a dogman, who was on the first floor, where he needed to be to land the bundles safely. If the cranage company failed to bring a worker to attach the bundles on the ground to the pallet hook, then that is the cranage company’s fault, not ours.
  • The labourer’s hire contract clearly states that his duties were general labouring duties only, such as keeping the site clear, lifting and carrying as required. Although he says that he knew how to attach a load to a pallet hook, he had no formal training in doing this. We never instructed him to perform that role.
  • The cranage work that the labourer performed was therefore not “work carried out as part of the conduct of… [our] business or undertaking”. Therefore, we are not in breach of our workplace health and safety duty.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a63%
case b37%

Expert commentary on the court's decision

Geoff Baldwin
Geoff BaldwinConsultant Lawyer
“It is really risky business to be aware of a risk and yet to hope that the burden of avoiding it will fall on someone else involved with the project. So, it is essential that risk analyses are properly and competently carried out, and that apparent risks are not pushed aside in the belief that they are only a problem for someone else.”
Court finds panel company guilty of breaching workplace health and safety duty

In SafeWork NSW v HD Projects Pty Ltd (2020) NSWDC 765, the NSW District Court found that lifting the panels was part of the “business or undertaking” of the panel company, HD Projects Pty Ltd, and that in allowing the labourer, Mr Dessens, to attach the bundle of panels to the pallet hook, the company was in breach of the duty it owed under section 19 (2) of the Act.

In a subsequent sentencing hearing, the Court fined HD Projects $170,000. (Please see SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126.)

HD Projects appealed to the NSW Court of Criminal Appeal but was unsuccessful. (Please see HD Projects Pty Ltd v SafeWork NSW (2022) NSWCCA 212.)

Cranage work done by labourer carried out in conduct of panel company’s business

The Appeals Court judge referred to the District Court judge’s factual findings, including that:

If HD Projects’ installation was to proceed it was “essential” that one of HD Projects’ workers assist at ground level in attaching the loads to the crane… Mr Dessens was on site… [to perform “general labouring duties”] at the relevant time and under the control and supervision of HD Projects’ site foreman, Mr Hamburger… Mr Hamburger “knew or ought to have known” that Mr Dessens undertook that task… Mr Hamburger was HD Projects’ “project supervisor” on site and under its WHS Plan was responsible for safety on site. Mr Hamburger knew that the cranage work was a necessary precursor to the installation of the panels…

According to the Appeals Court judge, it was “clear that in these circumstances Mr Dessens assisted with the cranage as part of the performance of his general labouring duties on the site”. The judge therefore concluded that HD Projects owed a duty to the injured workers under section 19(2) of the Act.

Panel company breached duty owed under section 19(2)

In concluding that HD Projects had breached its duty owned under section 19(2), the District Court said that HD Projects knew or ought to have known that Mr Dessens did not have training or experience in attaching a pallet hook to a load.

Further, the court found that there were “reasonably practicable” things that HD Projects could have done to avoid the incident.

For example, the company could have prohibited loads from being lifted unless there were enough competent dogmen to undertake the task.

It could have prohibited anyone from attaching a load to the pallet hook unless they were competent and trained to secure it safely.

It could have provided adequate information, instruction and training to Mr Dessens as to the scope of his role and prohibited him from engaging in work for which he was not qualified.

It could also have ensured that an exclusion zone was set up around the crane, so that people were not standing under it.

On appeal, HD Projects did not challenge the trial judge’s findings in relation to breach of duty.

High WHS standards must be met by persons conducting a business

The duties imposed on a person conducting a business or undertaking (often abbreviated as “PCBU”) have steadily increased since the enactment of the 1983 Occupational Health and Safety Act in NSW.

There is a clear legislative intent: to avoid injury to workers.

The present Act requires workers to take appropriate care for their own safety. However, recognising that those managing enterprises have far more power in this area, the onus is mainly on them.

Where there is doubt, courts will have regard to the policy purposes underlying legislation and prefer the interpretation which better gives effect to the legislative intent.

The standard imposed by the Act is that the person conducting a business or undertaking must “ensure” that risks to health and safety are avoided.

These are demanding words: “ensure” imports certainty, not merely best efforts; and a “risk” can be found even where there is no injury or damage.

The only qualifying words are that steps are not required which are not “reasonably practical”.

Here, it was abundantly clear that Mr Dessens could have been kept away from this task, even if it meant delay, and thus additional costs.

Note also that while HD Projects was fined $170,000, the maximum penalty for the offence that occurred is $1.5 million.

Clear demarcation of WHS responsibilities in complex projects is rare

The other message needing to be heard by the managers of complex projects is that, almost by definition, there is rarely a clearcut demarcation of the responsibilities of what may be several subcontractors, often with contractual responsibilities much more closely entwined than they were in this case.

It is really risky business to be aware of a risk and yet to hope that the burden of avoiding it will fall on someone else involved with the project.

So, it is essential that risk analyses are properly and competently carried out, and that apparent risks are not pushed aside in the belief that they are only a problem for someone else.

Expert advice is not necessarily legal: there are many providers in the work health and safety arena who are able to give sound advice on risk management.

Legal advice can, of course, also be a useful element in assessing overall risk, and thus informing both operational management and financial planning of substantial projects.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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