The ICNSW has had multiple iterations, the most recent of which was dissolved in 2016. It has historically delivered authoritative jurisprudence cited by other state and territory courts in WHS criminal prosecutions. Its return was ushered in by the NSW Government from 1 July 2024 by the Industrial Relations Amendment Act 2023 (NSW) which re-established the ICNSW as a superior court of record, substantially reducing the District Court’s role in WHS prosecutions. The ICNSW handles industrial disputes and WHS issues, with a view to providing workers with a specialised venue for 'fair and independent' dispute resolution, with the authority to compel unions and government agencies to collaborate, mediate workplace disputes, and arbitrate the resolution of pay disputes.
The re-opening of the ICNSW is part of a broader move to extend the jurisdiction of the Industrial Relations Commission of NSW and shift WHS matters away from generalist courts and allocate their determination to a specialist body with dedicated expertise.
Against that backdrop, the decision in Hammond is institutionally significant. While the legal issues and analysis of same is not unique, the robust judgment provides a good indication of how the reconstituted ICNSW is and will continue to approach WHS criminal prosecutions under its new mandate.
Facts of the case
On 14 February 2023, two workers, Mr Howarth and Mr Nix were working for the Defendant, E.J. & D. Hammond Pty Ltd (EJDH), a small civil construction contractor. Mr Howarth and Mr Nix were installing sewer pipes in a trench at a construction site for EJDH for a commercial and industrial estate development project in Port Macquarie (Site). Mr Howarth was a general labourer engaged by EJDH as a subcontractor, while Mr Nix was employed directly by EJDH as a labourer/pipe layer. Mr Hammond, a working director of EJDH, was responsible for the day-to-day management of the business, including supervision of workers and WHS management at the Site.
During the installation work, a portion of the southern side of the trench wall collapsed, partially burying Mr Howarth (Incident). Mr Nix and Mr Hammond dug Mr Howarth out of the dirt and emergency services were called. As a result of the Incident, Mr Howarth suffered crush injuries for which he required treatment in hospital.
Although shoring boxes were available (and had been used at the Site previously by workers to prevent trench wall collapse), they had not been installed in the relevant area at the time of the Incident, despite EJDH's director knowing they were required for the upcoming manhole installation. Workers entered the unshored trench to take measurements, and no clear instruction had been given directing them to stay out until shoring was in place.
Findings
As a result of the Incident, EJDH was charged with a Category 2 strict liability offence[1] under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act). This means as a person conducting a business or undertaking (PCBU), it had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking. SafeWork NSW alleged that EJDH failed to comply with that duty and that the failure to comply with that duty exposed Mr Howarth and Mr Nix to a risk of death or serious injury contrary to s 32 of the WHS Act. EJDH plead not guilty.
Ultimately, her Honour found EJDH guilty of the offence charged. This was based on a determination that EJDH:
- knew of the risk of trench collapse, which was foreseeable;
- knew of available control measures to address the risk of trench collapse, which would have been reasonably practicable to implement;
- knew that workers were entering the trench before the shoring boxes were in place; and
- failed to prohibit the workers from entering the trench until the shoring had been installed.
Her Honour concluded that EJDH's failures in this regard exposed workers to a risk of death or serious injury. Her Honour noted that the circumstances of this Incident are common among WHS trench‑collapse prosecutions: insecure trench, absence of shoring, foreseeable collapse, lack of adequate instruction, and workers nonetheless present in an unshored trench contrary to well-known safe industry practice.
Guiding principles
Her Honour’s judgment provides a clear restatement of WHS law. Relevantly, it outlines:
- A ‘risk’, for the purposes of WHS prosecutions, means the mere possibility of harm, not its likelihood.[2] The question is not, did the duty holder foresee a particular risk, but rather should it have.[3] An offence under section 32 of the WHS Act is made out where the failure of a PCBU results in the exposure of an individual to a risk; a specific incident need not have occurred, and the prosecution does not have to have an injured worker to bring a charge.[4] For this reason, EJDH was charged under section 32 of the WHS Act in respect of its exposure of both Mr Nix and Mr Howarth to the trench collapse, even though Mr Nix was unharmed.
- Determination of whether an identified control measure would have indeed been ‘reasonably practicable’ to implement is assessed objectively. The process of the assessment is more concerned with what a person engaged generally in the relevant field or industry should have known, as opposed to their actual knowledge.[5] The assessment weighs the likelihood and severity of harm, with respect to all matters to which the defendant had the power to control, supervise and manage.[6] The duty of care under section 19(1) does not require PCBUs to take every possible precaution; only those reasonably able to be taken to achieve a safe working environment.[7] In essence, a duty holder must take a proactive approach to safety issues and ensure they are identifying, and implementing, reasonably practicable steps to protect workers.
- The duty to take proactive safety measures includes accounting for careless and inattentive workers,[8] and even the possibility of the workers' own negligence must be factored in.[9] However, where a safe system is properly established and enforced, a single lapse by workers will not necessarily amount to employer liability.[10]
- For liability to be established, it must be proven that the defendant's act or omission was a significant or substantial cause of the worker being exposed to the risk. [11] This decision of the ICNSW reiterates that to determine causation, common sense will be applied to the facts for the purpose of attributing legal responsibility.[12] The relevant question is not whether the defendant was the cause of the death or injury, but rather whether there is a causal connection between the defendant's act or omission and the risk to which the worker was exposed.[13]
Comments
Justice Paingakulam's judgment is straightforward, principle‑driven, and applies the applicable law in a measured and unambiguous way. The judgment serves as a useful reminder for PCBUs and individuals managing workplace risks of what is required by SafeWork to prove the elements of an offence beyond reasonable doubt.
If you need advice on your safety obligations, please get in contact with our National Work Health and Safety team. At DWF, we have front-end and back-end specialists who can assist you with everything from workplace risk identification, management and mitigation, critical incident response, and investigation/prosecution defence.
1 Meaning the prosecution does not need to prove intention. See section 12A of the WHS Act.
2 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171; Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252 at [67].
3 Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) (1999) 101 IR 239; [1999] NSWIRComm 453.
4 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [13]
5 Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33].
6 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 at [37] per Gleeson CJ, Gummow and Hayne JJ.
7 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14 at [15], [38] per French CJ, Gummow, Hayne and Crennan JJ.
8 Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313; [1952] HCA 72 at [320] per Dixon CJ.
9 Smith v The Broken Hill Proprietary Company Ltd (1957) 97 CLR 337; [1957] HCA 34 at [343].
10 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at [215E].
11 Bulga Underground Operations v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [127].
12 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.
13 Bulga Underground Operations at [130].
