Poletti Corporation Pty Ltd v SafeWork NSW

[2020] NSWCCA 243

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Employment and Industrial Law
2. › Work health and safety
3. › Primary duty of care
4. › Person conducting a business or undertaking
5. › Duty to persons other than workers
6. › Whether primary judge correctly considered reasonable practicability of particularised steps
7. › Whether 'could have taken' equated to 'obliged to take'
8. › Work Health and Safety Act 2011 (NSW), ss 19(2), 32
1. Employment and Industrial Law
2. › Work health and safety
3. › Concurrent duties
4. › Multiple duty holders for same matter
5. › Capacity to influence and control
6. › Whether concurrent duty of principal contractor relieved subcontractor of its own duty
7. › Work Health and Safety Act 2011 (NSW), s 16
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Appeal in strict sense
5. › Necessity to show error of law or wrong principles in fact-finding
6. › Criminal Appeal Act 1912 (NSW), s 5AA(1)

Quick Take

When assessing whether a duty holder has breached s 19(2) of the WHS Act 2011 (NSW), a court may properly consider what the duty holder 'could' have done as part of the reasoning towards whether a step was 'reasonably practicable'. The concept of 'availability' in s 18(d) embraces possibility, and Baiada Poultry does not preclude consideration of possibility — it merely holds that possibility alone does not establish breach. A finding that a step was reasonably practicable necessarily encompasses a finding that the duty holder was obliged to take it. The existence of concurrent duties owed by other parties under s 16 does not relieve a duty holder of its own duty.