SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275

SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275

Section 31 of the Work Health and Safety Act 2011 (NSW) creates one offence. The prohibited act is, without reasonable excuse, engaging in conduct that exposes an individual to whom a health and safety duty is owed to a risk of death or serious injury or illness. Gross negligence and recklessness in s 31(1)(c) are alternative proscribed qualities or legal formulations of liability based on the same or substantially the same facts, not separate offences. The summons therefore charged only one offence and was not bad for duplicity or uncertainty, and the prosecution was not required to elect a fault element.

Jurisdiction
Australia
Judgment Date
11 July 2024
Procedural Posture
Criminal Prosecution for Alleged Category 1 Offence Under S 31 of the Work Health and Safety Act 2011 (nsw), With Alternative Category 2 Charge Under S 32 / Procedural Ruling on Defendant's Notice of Motion Alleging Duplicity And/or Uncertainty and Seeking Election of Fault Element
Outcome
Defendant's Notice of Motion dismissed; costs reserved; proceedings listed in the Work Health and Safety List.
Legal Topics
['duplicity' 'uncertainty in Charges' 'category 1 Offence' 'gross Negligence' 'recklessness' 'election of Fault Element']
['criminal Procedure' 'work Health and Safety'] ['duplicity' 'uncertainty in Charges' 'category 1 Offence' 'gross Negligence' 'recklessness' 'election of Fault Element']

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Procedural Posture

Criminal Prosecution for Alleged Category 1 Offence Under S 31 of the Work Health and Safety Act 2011 (nsw), With Alternative Category 2 Charge Under S 32 / Procedural Ruling on Defendant's Notice of Motion Alleging Duplicity And/or Uncertainty and Seeking Election of Fault Element

Legal Issues

  1. 1 ['Whether the charge under ss 19(1)/31 of the Work Health and Safety Act 2011 (NSW) was bad for duplicity because s 31 creates two offences based on gross negligence and recklessness.' 'Whether the s 31 charge was bad for uncertainty because it pleaded gross negligence and recklessness in the alternative.' 'Whether SafeWork NSW was required to elect which fault element it intended to rely upon.']

Ratio Decidendi

Section 31 of the Work Health and Safety Act 2011 (NSW) creates one offence. The prohibited act is, without reasonable excuse, engaging in conduct that exposes an individual to whom a health and safety duty is owed to a risk of death or serious injury or illness. Gross negligence and recklessness in s 31(1)(c) are alternative proscribed qualities or legal formulations of liability based on the same or substantially the same facts, not separate offences. The summons therefore charged only one offence and was not bad for duplicity or uncertainty, and the prosecution was not required to elect a fault element.

Court Disposition

Defendant's Notice of Motion dismissed; costs reserved; proceedings listed in the Work Health and Safety List.

Orders

  • ['Dismiss the Notice of Motion filed by the defendant on 22 April 2024.' 'Reserve the costs of that Notice of Motion.' 'List the proceedings in the Work Health and Safety List at 9.30am on 22 July 2024.']