SafeWork NSW v Cosentino Australia Pty Limited [2018] NSWDC 47

SafeWork NSW v Cosentino Australia Pty Limited [2018] NSWDC 47

The defendant owed a duty to Mr Orkzai as a worker engaged for its business. The defendant breached its duty by failing to enforce and maintain a safe system of loading slabs evenly on both sides of the A-frame, a practice mandated in its own safety policies. This failure exposed Mr Orkzai to a foreseeable risk of death or serious injury when the slabs, stacked only on one side, toppled onto him. The risk arose at the defendant's premises due to its actions, and the breach was a substantial contributing cause to the risk materialising. Guilt was established beyond a reasonable doubt for a Category 2 offence under s 32 of the Work Health and Safety Act 2011.

Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Prosecution / Finding of Guilt; Matter Listed for Sentence Hearing
Outcome
Guilty; elements of the offence proved beyond reasonable doubt.
Legal Topics
['duty of Persons Undertaking Business' 'risk of Serious Injury or Death' 'safe Loading Systems' 'employee Training' 'statutory Construction']
['criminal Law' 'work Health and Safety Law'] ['duty of Persons Undertaking Business' 'risk of Serious Injury or Death' 'safe Loading Systems' 'employee Training' 'statutory Construction']

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Procedural Posture

Prosecution / Finding of Guilt; Matter Listed for Sentence Hearing

Legal Issues

  1. 1 ['Whether Cosentino Australia Pty Ltd owed a health and safety duty to Mr Orkzai under s 19(1) of the Work Health and Safety Act 2011' 'Whether the defendant failed to comply with its health and safety duty by not taking the steps particularised in the Amended Summons' "Whether the defendant's breach of duty exposed Mr Orkzai to a risk of death or serious injury"]

Ratio Decidendi

The defendant owed a duty to Mr Orkzai as a worker engaged for its business. The defendant breached its duty by failing to enforce and maintain a safe system of loading slabs evenly on both sides of the A-frame, a practice mandated in its own safety policies. This failure exposed Mr Orkzai to a foreseeable risk of death or serious injury when the slabs, stacked only on one side, toppled onto him. The risk arose at the defendant's premises due to its actions, and the breach was a substantial contributing cause to the risk materialising. Guilt was established beyond a reasonable doubt for a Category 2 offence under s 32 of the Work Health and Safety Act 2011.

Court Disposition

Guilty; elements of the offence proved beyond reasonable doubt.

Orders

  • ['The elements of the offence set out in the Amended Summons filed on 6 November 2017 have been proved beyond a reasonable doubt.' 'Cosentino Australia Pty Limited found guilty of the offence.' 'Matter is to be listed for a sentence hearing on a date convenient to the parties.']