HD Projects Pty Ltd v SafeWork NSW

t) Representation: Counsel: R Reitano / M Baroni (Appellant) I Taylor SC / M Moir (Respondent)

Solicitors: Leigh Virtue & Associates (Appellant) Department of Customer Service (Respondent) File Number(s): 2019/391940 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2020] NSWDC 765 Date of Decision: 17 December 2020 Before: Scotting DCJ File Number(s): 2019/391940

JUDGMENT

1. MACFARLAN JA: In a judgment of 17 December 2020, Scotting DCJ, sitting in the summary criminal jurisdiction of the District Court, found the present appellant, HD Projects Pty Ltd ("HD Projects"), guilty of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("WHS Act") by reason of a breach of its duties under s 19(2) of that Act (SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765).
2. Section 19(2) is in the following terms: "(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking."
3. The breach found by his Honour arose out of an incident at a worksite in Kellyville in Sydney at which HD Projects was to install "AFS Logicwall panels" pursuant to a contract with the principal contractor at the site, Arise Constructions Pty Ltd ("Arise"). The "other persons" at the site whose health and safety were found for the purposes of s 19(2) to have been put at risk were Mr Ken Graff and Mr Soane Sitauti who were employees of Erectus Scaffolding Pty Ltd ("Erectus").
4. His Honour subsequently convicted HD Projects of the offence and imposed a fine of $170,000 ([2021] NSWDC 126). HD Projects appeals against its conviction pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW) which relevantly provides as follows: "(1) A person - (a) convicted of an offence, or (b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (1A) An appeal against an order referred to in subsection (1) (c) may only be made with the leave of the Court of Criminal Appeal. … (7) This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction."
5. The parties to the present appeal proceeded upon the basis that an appeal under this section can "only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact-finding exercise" (Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96]). There is a question as to whether this statement accurately describes the breadth of an appeal that can be brought in respect of an error of fact but it is unnecessary to answer the question on this appeal as neither party has put the ambit of s 5AA in issue.
6. In relation to this question, I refer in particular to the fact that s 5AA does not confine appeals to particular types of errors, such as of law, and unlike s 5 of the same Act does not require leave to appeal on a question of fact alone. Appeals under it are accordingly unrestricted save for those limitations that necessarily arise from the nature of the decisions under challenge, for example discretionary decisions or ones based on credit findings. At least arguably, and subject to those limitations, the principles stated in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 (also see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [87]) are applicable to appeals under s 5AA, notwithstanding that the section provides for appeals from criminal convictions and does not state (as it did prior to 2000) that appeals under it are to be by way of "rehearing" (see Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 at 663-666 and 672-678).
7. Whilst there are important differences between appeals in the strict sense (that is, not described in the relevant legislation as other than an "appeal") and appeals by way of rehearing, those differences do not appear to include a restriction in the former, but not in the latter, to particular types of factual challenges (see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 625-631; [1976] HCA 62; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57].)
8. HD Projects appeals on the following five grounds (it having been granted leave in the course of the appeal hearing to add the fourth and fifth grounds): 1. The trial judge erred in finding that the work of "craning" the wall panels from the ground floor level to the first floor was, for the purposes of s 19(2), "part of the conduct of [HD Projects'] business or undertaking." 2. In the alternative, the trial judge erred in finding that Messrs Graff and Sitauti were "other persons", for the purposes of s 19(2). 3. The trial judge erred in finding that Mr Marc Dessens was an employee or agent of HD Projects and that his conduct was the conduct of HD Projects by reason of s 244 of the Act. 4. The trial judge erred in finding that Mr Dessens acted within the scope of his employment or within his actual or apparent authority. 5. The trial judge erred in finding that Mr Hamburger knew or ought to have known that HD's workers were participating in the cranage work.
9. HD Projects' appeal thus did not include any challenge to the trial judge's findings in relation to breach of duty, this being an issue with which the trial and his Honour's judgment were to a significant extent concerned.
10. For the reasons given below HD Projects' five grounds of appeal should each be rejected and its appeal should therefore be dismissed.

The factual circumstances

1. Arise was the principal contractor for the construction of 58 townhouses at Kellyville. It subcontracted, first, HD Projects to supply and install the panels referred to above, secondly, All Cranes 4 Hire Pty Ltd (trading as Top Gun Cranes) ("All Cranes") to operate a mobile crane and to provide the service of a crane driver and a dogman and, thirdly, Erectus to supply and install scaffolding. HD Projects employed Mr Adam Hamburger and Mr Paul Georges as foremen and obtained labour hire workers, including Mr Marc Dessens, from Hunter Labour Hire Pty Ltd ("Hunter Labour Hire"). Mr Barry Ramm was the sole director of All Cranes and on the day in question he operated the crane that lifted, or was to lift, the relevant panels to the first floor of the buildings under construction. As noted above, Mr Graff and Mr Sitauti were employees of Erectus.
2. The panels were supplied to HD Projects by AFS Systems Pty Ltd ("AFS") in packs of about 15 panels. The packs were wrapped in stretch plastic with wood packing on the bottom of the packs. Each panel weighed approximately 76 kilograms. AFS also supplied to HD Projects an adjustable pallet hook, which had tynes similar to those on a forklift, to enable the packs of panels to be lifted by a mobile crane onto the buildings under construction. In addition, AFS supplied a Manufacturer Instruction Manual and a Safe Work Methods Statement ("AFS SWMS") to HD Projects.
3. At about 8:30am on 15 December 2017 Mr Ramm commenced to operate the mobile crane at the site, lifting the packs of panels to the level 1 slab, which was one level above ground level. Mr Adam Kerr worked as a dogman on level 1 where the packs were landed. As found by the primary judge, for about two hours before the subject incident which occurred sometime between 10:30am and 10:45am, Mr Dessens assisted at ground level with the cranage work and HD Projects' supervisor on site, Mr Hamburger, knew or should have known that Mr Dessens was doing that. At about 10:30am to 10:45am Mr Dessens undertook the task of securing a pack of panels to the pallet hook. He did so by inserting the pallet hook's tynes into the second panel from the bottom of the pack, leaving the bottom panel of the pack held in place only by the plastic wrapping. In the course of the pack being lifted by the crane, the bottom panel detached from the pack and struck Mr Graff and Mr Sitauti who were standing below discussing what work they would do that afternoon. Mr Graff sustained serious injuries.

HD Projects' role

1. The contract between HD Projects and Arise provided for HD Projects to supply and install the panels and for Arise to arrange cranage.
2. HD Projects' Work Health Safety Plan ("WHS Plan") noted that it would "supply and take delivery of AFS panels". Its Safe Work Method Statement ("HD SWMS") plan purported to "Break the job down into steps", Step 7 being "Taking delivery of the AFS panels". In relation to that step, the plan identified control measures including the setting up of an exclusion zone, and stated: "Only qualified dogman to attach and direct load. Dogman to shift attachment ring". The "person who will ensure this happens" was stated to be "Head Contractor, Crane Operator, Dogman, HD Employee directing delivery".

Mr Dessens' duties

1. As noted above, Mr Dessens was a labour-hire worker made available to HD Projects by Hunter Labour Hire, from which HD Projects sourced workers from time to time. Before Mr Dessens was made available, HD Projects advised Hunter Labour Hire that Mr Dessens' duties on the site were to be "general labouring duties such as keeping the work area clean, moving material, and assisting HD Projects' installers where required".
2. In its post-incident response to a s 155 notice under the WHS Act requiring the provision of information, Hunter Labour Hire described Mr Dessens' position with it as "General labourer" and his duties on site in the same terms, that is, "to perform general labouring duties such as keeping work area clean, moving materials and assisting HD installers where required".
3. HD Projects' response to the s 155 notice described Mr Dessens' duties on site as involving "cleaning and de-bracing walls". It denied that it instructed Mr Dessens to "sling the AFS packs".
4. In his record of interview with investigators Mr Dessens said that he had been told to load the panels onto the pallet lifter "by one of the HD Project guys" although he could not remember which one. He said later in the interview that he thought that someone from HD Projects told him to do it but "maybe" it was a man who was operating the crane. He also said that he never signed the HD SWMS or had even seen the document before despite his name appearing amongst others at the end of that document.

Mr Hamburger's duties

1. The HD WHS Plan provided that Mr Hamburger was to be the "project supervisor" on site and to be responsible for safety and other matters. Mr Hamburger had signed the AFS Daily Run sheet delivery records to acknowledge delivery of the panels to HD Projects that morning.
2. In his Injury Report completed shortly after the subject incident, but on the same day, Mr Hamburger stated: "Crane only had one dogman he was on slab and Marc was loading them from below" (sic). Mr Hamburger convened a toolbox meeting later on the same day, the minutes of which include the statement: "Nobody to hook loads up even with panel lifters let dogman do" (sic). Mr Hamburger did not give evidence at the trial.

Work Health and Safety Act 2011 (NSW)

1. The following provisions of the WHS Act are relevant to the appeal.
2. Section 7: Meaning of "worker" "(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking …"
3. Section 19: Primary duty of care "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking."
4. Section 32: Failure to comply with health and safety duty - Category 2 "A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. …"
5. Section 244: Imputing conduct to bodies corporate "(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. …"

The prosecution's case

1. SafeWork NSW's summons filed in the District Court on 12 December 2019 gave the following details of the offence charged: "Details of Offence: Description: On 15 December 2017 at 122 Windsor Road, Kellyville in New South Wales, H D Projects Pty Ltd (the defendant), being a person conducting a business or undertaking who had a health and safety duty under section 19(2) of the Work Health and Safety Act 2011 (the Act), to ensure so far as is reasonably practicable the health and safety of other persons is not put at risk from work carried out as part of the conduct of the defendant's business or undertaking, did fail to comply with that duty and thereby exposed other persons, in particular Ken Graff and Soane Sitauti, to a risk of death or serious injury contrary to section 32 of the Act. Date: 15 December 2017 Place: 122 Windsor Road, Kellyville NSW 2155 Particulars: Attached as 'Annexure A' Statutory provision: Sections 19(2) and 32 of the Work Health and Safety Act 2011 …"
2. The particulars contained in Annexure A included the following: "2. At all material times, the defendant's business or undertaking involved the installation of permanent formwork systems, including AFS Logicwall® Wall Panels (AFS wall panels) … 4. At all material times, Arise engaged: a) All Cranes 4 Hire Pty Ltd (All Cranes) to provide crane services at the site, including lifting loads of AFS wall panels (loads) b) The defendant to install AFS wall panels at the site. This included directing loads of AFS wall panels, being lifted by crane, to certain areas of the site. At all material times, the company had management and control of the loads of AFS wall panels; and c) Erectus Scaffolding Pty Ltd (Erectus) to provide scaffolding services at the site. 5. At all material times, the defendant had management and control of a PHD2200 Adjustable Pallet Hook (pallet hook), which was used [by] All Cranes to lift the loads. … 10. The defendant failed to ensure so far as is reasonably practicable the health and safety of other persons, in particular Messrs Graff and Sitauti, was not put at risk, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise if not reasonably practicable to eliminate, the risk: … (d) Prohibiting anyone from attaching a load (to be lifted by a crane) to the pallet hook unless they were competent and adequately trained to secure it safely, so as to prevent any part of the load from falling whilst being lifted. … (f) Providing adequate information, instruction, and training to its workers, in particular Marc Dessens (Mr Dessens), as to the scope of their role and prohibiting them from engaging in work for which they were not qualified to undertake, in particular the work of slinging loads to be lifted by crane. (g) Providing adequate supervision to its workers, in particular Mr Dessens, to ensure so far as is reasonably practicable that they were not undertaking work which they were not qualified to undertake, in particular the work of slinging loads to be lifted by crane."

The trial judgment

1. As noted above, the trial judgment was to a significant extent concerned with the issue of breach of duty that does not arise on appeal. The references below do not therefore extend to discussion of that issue.
2. The judgment included the following presently relevant findings and observations: "33 The defendant advised HLH that Mr Dessens' duties were to be general labouring duties such as keeping the work area clean, moving material and assisting installers where required. Mr Dessens' experience consisted of four months working as a general labourer. Mr Dessens informed HLH that he had no "tickets" or qualifications, other than a white card. 34 The defendant supplied a site specific Work Health and Safety Plan to Arise dated 10 October 2017 (WHS Plan). The WHS Plan provided that Mr Georges was the defendant's employee on site with responsibility for the defendant's Scope of Works and for its safety and that the project supervisor was Mr Hamburger. The Scope of Works was noted to include, "supply and take delivery of AFS panels". The Risk Register identified the risk of "falling load" and "striking objects" from the tasks of delivery of panels and cranage of panels onto slab. The control measures identified were the setting up of an exclusion zone for the delivery task, using ticketed and licensed personnel, and use of a spotter with a dogman for the cranage task. The WHS Plan included a reference to AS 2550 relating to mobile plant and equipment. … 41 Inspector Ball had a conversation with Mr Ramm, about which she made notes in her notebook. Mr Ramm was filling in for a crane operator who was sick. He had moved 6-8 packs of panels before the incident. He was unsure of the precise number. The dogman was up on level 1 landing the loads. A HD Projects worker was assisting in loading the panels onto the Pallet Hook. He was not a dogman. … 48 Mr Dessens stated that he worked intermittently for the defendant at the site. He believed that he first worked at the site on 5 December 2017. He was shown the defendant's SWMS but denied signing it or that his name that was handwritten on the last page of the document was in his handwriting. Mr Dessens stated that he had not seen the defendant's SWMS before. Mr Dessens stated that on the day of the incident that he was loading the packs of panels onto the pallet lifter. He said that he taught himself how to do it and had done it many times. After the incident he thought that he must have put the tynes in the second panel, but he was pretty sure that he put them in the first panel. He was told what to do by one of the HD Project guys, but he could not remember which one. He stated that he may have been told to do it by the mate of the crane driver, but he did not remember. Nobody showed him what to do, he had just seen other people do it. Mr Dessens stated that he had done this "just maybe one time before". Looking at the photographs of the pallet lifter, Mr Dessens did not recall it having straps next to the tynes. Mr Dessens did not recall anyone working in the area with him. 49 Mr Dessens' Record of Interview was tendered by consent and he was not required for cross-examination. I am satisfied that I should accept his evidence, but I note that there are internal inconsistencies in his evidence. The issue is whether or not I can rely on it to prove the elements of the offence beyond reasonable doubt. I will return to that issue in deciding Element 3."

Ground 1: Was Mr Dessens' cranage work part of the conduct of HD Projects' business or undertaking?

1. HD Projects' case on appeal commenced with a submission that was also put to the trial judge (see [8(1)] above). That was in effect a pleading point, that it was not open to the trial judge to find that what Mr Dessens did was part of HD Projects' conduct of its business or undertaking because the prosecutor's "pleaded case" was that HD Projects was only an installer of the panels, not that its business or enterprise extended to the cranage work.
2. I agree with the trial judge that, although the prosecutor's summons "could have been more explicit", it was sufficiently clear at the trial that the prosecution case as propounded was broader than HD Projects contended on appeal that it had been. Read as a whole, the summons clearly conveys that the prosecution was seeking to hold HD Projects responsible for Mr Dessens' involvement in the cranage work. As the "Details of Offence" stated on the first page of the summons indicate, the impugned conduct was alleged to be "part of the conduct of the defendant's business or undertaking". That the prosecution alleged that this included Mr Dessens' conduct on behalf of HD Projects is apparent from particulars 10(f) and (g) which expressly refer to Mr Dessens (see [28] above). The position was put beyond doubt by the Statement of Facts filed with the summons (see [29] above). Its lodgement with the Court and service on HD Projects with the summons constituted a notification of the factual matters on which the prosecution was founded and which subsequently formed the basis of the trial judge's decision. Mr Dessens' alleged role is made clear in that document (see particularly [20]).
3. Like the pleading point, HD Projects' substantive argument advanced in support of this ground of appeal must be rejected. The reasons are as follows.
4. His Honour's factual findings were relevantly to the following effect: 1. HD Projects was contractually bound to Arise to supply and install the panels, but it was not contractually obliged to do the cranage work ([11] above). 2. HD Projects, through its foreman on site, Mr Hamburger, took delivery of the relevant panels at the site on the morning of the incident ([20] above). 3. The panels were to be installed on an upper floor (the first floor) of one of the buildings under construction ([11] above). 4. This required them to be lifted by All Cranes' mobile crane that was on site ([11]-[12] above). 5. All Cranes' dogman, Mr Kerr, was situated on the first floor, where the packs were, and were to be, landed ([13] above). 6. A worker was needed at ground level to attach the loads to the crane mechanism but All Cranes did not have any further worker available on site to do this ([21] above). 7. If HD Projects' installation was to proceed it was "essential" that one of HD Projects' workers assist at ground level in attaching the loads to the crane ([37] above). 8. Mr Dessens was made available to HD Projects by a labour hire company to perform "general labouring duties" ([16]-[17], [31] above). 9. Mr Dessens was on site for that purpose at the relevant time and under the control and supervision of HD Projects' site foreman, Mr Hamburger ([37] above). 10. According to Mr Dessens, either an HD Projects employee or possibly someone working the crane told him to assist in attaching the packs of panels to the crane hook at ground level ([19] above). HD Projects denied that it did this ([18] above). 11. Mr Hamburger "knew or ought to have known" that Mr Dessens undertook that task ([37] above). Mr Hamburger was HD Projects' "project supervisor" on site and under its WHS Plan was responsible for safety on site ([20] above). 12. Mr Hamburger knew that the cranage work was a necessary precursor to the installation of the panels ([37] above).

Ground 2: Were Messrs Graff and Sitauti "other workers" for the purposes of s 19(2)?

1. In the event that Ground 1 was unsuccessful, HD Projects accepted that it owed a duty in relation to Mr Graff and Mr Sitauti under s 19(1) but denied that it owed such a duty under s 19(2), which was the only subsection that the prosecutor relied upon. It contended that Messrs Graff and Sitauti fell within the statutory definition of "worker" in relation to HD Projects (as well as Erectus), so as to bring them within the exclusive ambit of s 19(1), with the consequence that they could not be "other persons" for the purposes of s 19(2). It submitted: "This was because [HD Projects'] work involved the installing of the panels and, if viewed to include associated work such as cranage, necessarily then involved all of the other work, including erecting perimeter scaffolding, referred to in the contract between Arise and [HD Projects]. The definition of business or undertaking in s 5(1)(a) sufficiently contemplates conducting a business or undertaking with someone else irrespective of whether there was a partnership or joint venture. If that is the case then the work that was part of the business or undertaking included installing the scaffolding, craning it to the first floor, erecting the scaffolding and so on. All of that work was part of the business or undertaking."
2. This submission however proceeds on an erroneous assumption that the trial judge found that Mr Dessens' work fell within the scope of the business or undertaking of HD Projects because that business or undertaking embraced all, or at least most of, the other work done on site, including the erection of perimeter scaffolding. In fact, the finding was based on the more specific finding that Mr Dessens involved himself in the cranage work, at least to the extent of attaching packs of panels to the pallet hook. There was no evidence that anything similar occurred in relation to the scaffolding, such that any part of the scaffolding work became part of HD Projects' business or undertaking.
3. As noted in [11] above, Arise Constructions separately subcontracted the supply and installation of the panels to HD Projects, and the supply and installation of the scaffolding to Erectus. As the trial judge found, there was no basis for concluding that these companies were in partnership or joint venture. Nor was there any other basis for finding, as HD Projects contended on appeal, that there was a linkage between the businesses that rendered the scaffolding work part of HD Projects' business.

Ground 3: Was Mr Dessens an employee or agent of HD Projects and was his conduct that of HD Projects by reason of s 244?

1. The trial judge's finding that Mr Dessens was an employee or agent of HD Projects for the purposes of s 244 of the WHS Act, with the result that his conduct was imputed to HD Projects, was unnecessary in light of his factual findings as to what occurred on site on the day in question. As I have said above (see [55] above) s 19(2) was satisfied whether or not Mr Dessens was an employee, temporary or otherwise, of HD Projects. Similarly, that was the case irrespective of any characterisation, for the purposes of s 244, of Mr Dessens as an "agent" of HD Projects.
2. SafeWork NSW said on appeal that it did not rely on s 244 at the trial (although, as Cavanagh J points out below, there is at least doubt as to the correctness of this proposition). In these circumstances and as SafeWork NSW did not rely on the section on the appeal, this Court needs to proceed on the basis, favourable to HD Projects, that the trial judge's reliance on s 244 was erroneous. It was not however a material error because there was no error in his Honour's finding of guilt, it being well supported by the factual findings that his Honour made. These proved the case against HD Projects beyond reasonable doubt and there was no other basis upon which it could be said that a miscarriage of justice occurred (see Stokes v The Queen (1960) 105 CLR 279 at 284-5; [1960] HCA 95; Conway v The Queen (2001) 209 CLR 203; [2002] HCA 2 at [6]-[40], [76]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937, particularly [41], [47], [115]-[118], [120]; Edwards v the Queen [2021] HCA 28 at [74]; (2021) 95 ALJR 808; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [48]).

Ground 4: Was Mr Dessens acting within the scope of his employment or within his actual or apparent authority?

1. HD Projects was given leave in the course of the appeal hearing to add this ground of appeal.
2. I have sufficiently addressed the ground in [43]-[47] above. For the reasons stated there, it should be rejected.

Ground 5: Did Mr Hamburger know or ought he have known that Mr Dessens was participating in the cranage work?

1. This ground also was added, by leave, in the course of the appeal hearing.
2. The matters to which I have referred in [43]-[47] above indicate that his Honour was well-justified in making the challenged finding. Accordingly, this ground of appeal should also be rejected.

orders

1. As none of the grounds of appeal has merit, I propose that the appeal be dismissed.
2. HAMILL J: I have had the considerable advantage of reading the judgments of Macfarlan JA and Cavanagh J in draft form. I agree with their Honours that the appeal must be dismissed. I agree with the reasons provided by the presiding Judge and with the additional observations made by Cavanagh J. I perceive no conflict in their Honours' reasoning. I agree with the orders proposed by Macfarlan JA.
3. CAVANAGH J: I have had the benefit of reviewing the judgment of Macfarlan JA in draft. I agree with the orders proposed by his Honour.
4. I wish to add the following observations in respect of appeal Ground 3 and its significance to the outcome of this appeal.
5. The appellant maintains that, as the respondent concedes error under Ground 3, the appeal must be upheld and the judgment, conviction and penalty imposed must be quashed. That is put on the basis that the imputation of Mr Dessens' conduct to the appellant pursuant to s 244 of the Work Health and Safety Act 2011 (NSW) (WHS Act) was integral to the finding that the risk was from work carried out by the appellant.
6. In its written submissions in this Court, the respondent submitted that "the prosecution did not contend at trial that Mr Dessens was an employee or agent of the appellant for the purposes of s 244 of the WHS Act and accepts that Mr Dessens was not an employee or agent of the appellant …"
7. The submission that the prosecutor did not contend at trial that Mr Dessens was an employee or agent is not entirely correct. Indeed, the prosecutor made the following submissions: "I mentioned before that the defendant cannot disown Mr Dessens, the Prosecutor relies upon s 244 of the Work Health and Safety Act. It's accepted by the Prosecutor that Mr Dessens was not an employee of the defendant and nonetheless he was an agent of the defendant. I mean for all intense [sic] purposes he was an employee of the defendant, he was a labour hire employee. The post employer was the defendant. I accept that as a matter of law he was not an employee and that may preclude reliance upon that of s 244 which refers to an employee, he was clearly wasn't an officer but he was an agent of the defendant and therefore in my submission his negligence is imputed to the defendant."

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2022