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  NSWDC 237 has clarified the
interpretation of s 19 of the Work Health and Safety Act
2011 (NSW) (the Act).
Sparke Helmore acted for Rawson Homes, the principal contractor
for a residential construction site in Orange, NSW. Rawson engaged
a specialist contractor, Regal Concreting, to facilitate and pour
the concrete slab for the house, and Regal sub-contracted Dagmar
for the supply and operation of a concrete boom pump.
On 30 October 2013, the pump was set up by Dagmar and several
employees of Regal were performing duties associated with the
concrete pour. 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.
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".
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.
During the hearing, SafeWork argued that it could charge
defendants under s 19(1) or s 19(2) of the Act because of the way
the legislation was worded and that the phrase "other
persons" was a catch-all reference to any person other than
the duty holder—in this instance, being Rawson as the
relevant person conducting a business or undertaking (PCBU).
It was submitted that SafeWork's interpretation of the
legislation should not be accepted because:
It is more appropriate to adopt the ordinary meaning of the
words. In the Act, the term "workers" is expressly
defined as people at a site who undertake work, which by definition
includes employees of a contractor. "Other persons" under
the Act are individuals that may be at the site but not necessarily
Parliament implemented two subsections, one applying to workers
and another to other persons. The different wording indicates the
subsections serve distinct purposes and apply to specific
If the Prosecutor's submission were accepted, s 19(1)
applying to workers would be redundant and serve no purpose as s
19(2) would cover the field.
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
The decision reaffirms the strict application of legal
principles of interpretation and pleading in the WHS jurisdiction,
which is significant because cases brought before the courts under
this section fall under the criminal jurisdiction and may carry
significant penalties. It will be interesting to see whether any
other proceedings commenced by SafeWork under s 19(2) of the Act
may be withdrawn or similarly dismissed as a result of this
decision. Indeed, this case may have far reaching consequences
considering, as was the case for Rawson Homes, the applicable
limitation period may have elapsed and SafeWork may be precluded
from filing alternate charges.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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