SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668

McConnell Dowell Constructors (Aust) Pty Limited, as principal contractor, owed a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), failed to comply with that duty by not taking reasonably practicable steps (such as requiring risk assessment, proper storage of headstocks, supervision, and instruction), and this breach exposed workers to a risk of death or serious injury, thereby committing a Category 2 offence under s 32 of the Act.

Parties
Prosecutor: SafeWork NSW; Defendant: McConnell Dowell Constructors (Aust) Pty Limited
Jurisdiction
Australia
Judgment Date
06 November 2020
Procedural Posture
Criminal / Liability (verdict/conviction Delivered, Sentencing Pending)
Outcome
Guilty verdict; sentencing to be heard at a later date.
Legal Topics
Duty of Person Undertaking Business, Risk of Death or Serious Injury, Principal Contractor Obligations, Risk Assessment, Reasonable Practicability, Failure to Comply With Health and Safety Duty
Criminal Law Work Health and Safety Duty of Person Undertaking Business Risk of Death or Serious Injury Principal Contractor Obligations Risk Assessment Reasonable Practicability Failure to Comply With Health and Safety Duty

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Parties

SafeWork NSW

Prosecutor

McConnell Dowell Constructors (Aust) Pty Limited

Defendant

Procedural Posture

Criminal / Liability (verdict/conviction Delivered, Sentencing Pending)

Legal Issues

  1. 1 Did the defendant owe the workers a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)?
  2. 2 Did the defendant fail to comply with its health and safety duty by failing to take any of the steps particularised in the Second Amended Summons?
  3. 3 Did the defendant's breach of duty expose the workers to a risk of death or serious injury?

Ratio Decidendi

McConnell Dowell Constructors (Aust) Pty Limited, as principal contractor, owed a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), failed to comply with that duty by not taking reasonably practicable steps (such as requiring risk assessment, proper storage of headstocks, supervision, and instruction), and this breach exposed workers to a risk of death or serious injury, thereby committing a Category 2 offence under s 32 of the Act.

Court Disposition

Guilty verdict; sentencing to be heard at a later date.

Orders

  • The elements set out in the Second Amended Summons dated 24 July 2020 have been proved beyond reasonable doubt.
  • I find the defendant McConnell Dowell Constructors (Aust) Pty Limited guilty.