Australia: The first category 1 WHS prosecution in New South Wales: The meaning of Reckless

Last Updated: 17 May 2018
Article by Michael Byrnes

The recent decision of the District Court in Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27 is the first to deal with a category 1 prosecution in New South Wales under the Work Health and Safety Act 2011 (NSW) (Act).


There are three categories of offences for failing to comply with a duty under the Act.

The most serious is category 1. This is where a duty holder recklessly exposes a person to whom a duty is owed to the risk of death or serious injury. The maximum penalty for a corporation for a category 1 offence is $3,000,000.

A category 2 offence is where a duty holder exposes a person to whom a duty is owed to the risk of death or serious injury. It is the same as category 1 except without the element of recklessness. The maximum penalty for a corporation for a category 2 offence is $1,500,000.

A category 3 offence is a failure to comply with a health and safety duty. The maximum penalty for a corporation for a category 3 offence is $500,000.


The Cudal decision is particularly instructive in that it examines what constitutes "reckless" for the purpose of the penalty provisions of the Act.

Cudal Lime Products Pty Ltd (CLP) operated the Cudal Lime Quarry which is an open cut limestone quarry located at Cudal in New South Wales.

A worker engaged by CLP lived in a cottage 200 metres from the mine with his de facto partner.

Electricity was supplied to the mine and the nearby cottage through the same system. Tragically, the worker's de facto partner was fatally electrocuted when she came into contact with a metallic flexible shower hose while standing on a waste drain in the shower recess of the cottage. The metallic fixtures of the cottage (including metal pipework and taps, the hot water service and external taps) were dangerously electrified. This was the result of a fault in the low voltage system of the mine which transferred to the cottage via the cable supply between the mine and the electrical sub-board of the cottage.

This incident occurred after a series of electrical faults at the mine over the course of many years.

Judge Scotting found that it was reasonably practicable for CLP to take a number of steps to eliminate or minimise the risk (the relevant test) of electrocution to the worker and his de facto partner arising from an electrical fault. One of these steps was to have the new switchboard (through which the current flowed from the mine to the cottage) installed by, or under the direct supervision of, a qualified electrical tradesperson or a qualified electrical engineer. An unqualified person had, at the direction of CLP, undertaken electrical work on the switchboard as part of its installation. (The person who undertook this work was also charged and pleaded guilty under the Act.)

Some of the other reasonably practicable steps identified by Scotting DCJ that could have been taken by CLP were to ensure that the electrical protection on the switchboard interrupted the power supply in the event of an electrical fault, to install an earth-neutral (MEN) link and ensure that cables were properly insulated and free of damage.

CLP pleaded guilty to a category 1 offence. In doing so it accepted that it recklessly disregarded the risk. While the plea of guilty obviated the need for a detailed consideration of the meaning of "reckless" in this context, some interesting observations were nevertheless made by Scotting DCJ.

At paragraph 136 his Honour stated:

"By its plea, CLP accepts that the risk was recklessly disregarded. The direction of an unqualified person to install the switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute recklessness: Aubrey v R [2017] HCA 18 at [49]"

His Honour found that the recklessness was aggravated by the history of electrical issues at the mine which were identified as safety risks by the Mine Safety Officer and not properly rectified.


In considering the penalty to be imposed Scotting DCJ had regard to the importance of deterrence (including the fact that CLP operates in the mining industry which presents significant risks to the health and safety of its employees), aggravating factors (which in this case included the significant personal impact of the fatality), mitigating factors (which in this case included no previous convictions, community and charitable involvement and remorse and rehabilitation) and the limited capacity of CDL to pay a fine.

After weighing up these factors the appropriate fine was determined to be $1,200,000 which was discounted by 25% to take into account the plea of guilty, resulting in a final penalty of $900,000.


On 18 April 2018 it was reported that a series of charges have been laid in relation to the 2016 death of a construction worker at the University of Canberra Public Hospital worksite.

The principal contractor and a sub-contractor on the site were both charged with category 1 offences. Some workers (a "dogman", the site supervisor and safety officer) were also charged with category 1 offences. The Chief Executive Officer of the Principal Contractor and the Managing Director of the sub-contractor were charged with category 2 offences along with the site manager on site on the day of the incident (also employed by the Principal Contractor).

In addition to these charges under the applicable equivalent of the Act, the crane driver was charged with manslaughter.

Given the number and seriousness of these charges, which some observers note reflects a change in approach by the ACT regulator (Work Safe ACT), this will be a case to watch with interest. It may well be a portend that regulators, perhaps emboldened by the outcome in the Cudal case, will be more willing to lay category 1 charges in the future.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions