Landmark Roofing Pty Ltd v SafeWork NSW

[2021] NSWCCA 95

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Appeal under s 5AA Criminal Appeal Act 1912 (NSW)
4. › Appeal in strict sense
5. › Necessity to show error of law or wrong principle in fact-finding
6. › Criminal Appeal Act 1912 (NSW), s 5AA
1. Practice and Procedure
2. › Procedural fairness
3. › Duties of trial judge sitting alone
4. › Whether trial judge required to warn parties before rejecting evidence of prosecution witness not challenged in cross-examination
5. › No obligation to accept unchallenged evidence
6. › No obligation to indicate potential rejection during submissions
1. Employment and Industrial Law
2. › Work health and safety
3. › Offences
4. › Attribution of employee conduct to body corporate
5. › Whether deliberate disobedience by employee takes conduct outside scope of employment
6. › Whether s 244(1) Work Health and Safety Act 2011 (NSW) applies to deliberately disobedient conduct
7. › Work Health and Safety Act 2011 (NSW), ss 19, 32, 244
1. Employment and Industrial Law
2. › Work health and safety
3. › Duty of person conducting business or undertaking
4. › Reasonably practicable measures
5. › Whether measures should be considered in isolation or as interconnected steps
6. › Work Health and Safety Act 2011 (NSW), s 19(1)

Quick Take

Section 244(1) of the Work Health and Safety Act 2011 (NSW) attributes to a body corporate the conduct of an employee acting within the actual or apparent scope of employment, with no exception for deliberate disobedience of the employer's instructions. An employee performing authorised work in an unauthorised manner (including by deliberately disobeying safety instructions) remains within the scope of employment for attribution purposes. Reasonably practicable measures under s 19(1) should be assessed as interconnected steps rather than in isolation.