Prime Marble & Granite Pty Ltd v Safework NSW

Evidence

1. It is convenient next to record his Honour's recitation of the evidence upon which SafeWork relied: "Evidence for the Prosecutor Affidavit of Inspector Seneviratne 24 Inspector Seneviratne affirmed an affidavit on 16 November 2023 (PX 1). His role at SafeWork was to provide expert advice, assistance, education and compliance services to contribute to harm reduction in workplaces and the community. In 2017 he was involved in a project entitled 'Preventing Crystalline Silica Dust in the Workplace'. The project was designed to identify high risk industries and activities and provide tailored safety advice and assistance. Part of the project involved personal air monitoring of workers in factories. The purpose of this monitoring was to find the level of RCS exposure among workers fabricating stone benchtops. The workplaces were selected in a random manner. The air monitoring was not part of the investigation of any particular worker diagnosed with silicosis at Prime Marble. 25 Inspector Seneviratne carried out personal air monitoring of six workers at the Prime Marble premises at Greenacre on 30 August 2017. He was not investigating a potential contravention of the WHS Act but was researching RCS levels in the industry. He recorded the first name of each worker but did not record their full names. None of the six workers were Mr Zhang or Mr Geng. 26 Inspector Seneviratne was aware of an Improvement Notice issued by Inspector Lau on 20 April 2018. He knew that this Improvement Notice was issued in response to the recommendations in his WHM Report. 27 Inspector Seneviratne went back to the premises of Prime Marble on 7 August 2018. He was shown a 'Dust Diseases Care' report of health monitoring done for two workers. Neither of the workers were Mr Zhang or Mr Geng. The inspector was not made aware of Mr Zhang or Mr Geng being workers at Prime Marble. At no stage was Inspector Seneviratne aware that Mr Zhang or Mr Geng performed work at Prime Marble. At no stage was he aware that Mr Zhang or Mr Geng had been exposed over a period of time while working for Prime Marble to high levels of RCS. Inspector Seneviratne played no role in the later investigation into the exposure of Mr Zhang and Mr Geng to RCS while working at Prime Marble. Affidavit of Inspector Weller 28 Inspector Weller affirmed an affidavit on 16 November 2023 (PX 3). 29 On 3 February 2021 SafeWork received a NSW Ministry of Health Silicosis Notification in respect of Mr Zhang, advising that he had been diagnosed with silicosis. The notification indicated that Mr Zhang had died on 7 June 2020. Inspector Weller then sought documents from iCare, including the Industrial History and Medical Assessment Panel Certificates for Mr Zhang. These were received by SafeWork on 31 March 2021. 30 The Industrial History provided for Mr Zhang listed employment with Jackson Marble Pty Ltd between 2002 and 2009 and Prime Marble between 2013 and 2019. In both periods of employment Mr Zhang was said to have had silica dust exposure. The information in the Industrial History was provided by Mr Zhang's wife, as Mr Zhang was already deceased. She said that while Mr Zhang had worked for Prime Marble from about 2013 onwards, he became unwell while on a holiday in China in early 2019. They returned home and he saw a respiratory specialist who advised him to leave his work in the stone industry and avoid any future exposure. 31 Under the heading 'Exposure Corroboration' in the Industrial History, there was mention of two other workers at the Prime Marble factory who had applied for dust diseases compensation. They were not mentioned by name, but one applicant was said to have been awarded compensation for 45% disablement for silicosis in 2019. SafeWork later ascertained that this worker was Mr Geng. 32 The Industrial History concluded by stating that Mr Zhang had applied for dust diseases compensation during his lifetime, but passed away one month later on 17 June 2020, before an Industrial History interview could be conducted with him. Thus the information was obtained from Mr Zhang's widow. 33 The material from iCare included a Disablement Certificate signed by three doctors dated 3 September 2020 stating that Mr Zhang was 100% disabled, commencing on 14 May 2020. This date is obviously when he first went to the Dust Diseases Authority (DDA) seeking compensation. The material also included a Death Certificate certifying that Mr Zhang died on 17 June 2020 from 'scleroderma and silicosis' attributable to his exposure to the inhalation of silica dust. 34 On 7 May 2021 Inspector Weller sought information from iCare in relation to Mr Geng. 35 The information provided by iCare included an Industrial History for Mr Geng, which stated that he had worked as a stonemason between 2015 and 2018 for Prime Marble. The information in the Industrial History was provided by Mr Geng himself. He spoke of a heavy exposure cutting and drilling stone benchtops while working for Prime Marble between 2015 and 2018. 36 The material from iCare included a Disablement Certificate dated 9 May 2019, certifying a 45% level of disablement due to inhalation of dust. Affidavit of Inspector Ball 37 Inspector Ball affirmed an affidavit on 17 November 2023 (PX 2). On 5 May 2021 the Investigation Decision-Making Panel of SafeWork approved a full investigation into Prime Marble, arising from a notification from the NSW Ministry of Health on 3 February 2021 to SafeWork regarding the diagnosis of silicosis for Mr Zhang. Inspector Ball was provided with an Industrial History and a Medical Panel Assessment Certificate for Mr Zhang, which were obtained from the iCare. 38 Inspector Ball reviewed material provided by iCare and sought further information from iCare in relation to insurance for Prime Marble. Inspector Ball also obtained material from South Sydney Local Health District in relation to Mr Zhang. 39 On 2 June 2021 Inspector Ball was allocated the investigation in relation to the matter of Mr Geng. The information included an Industrial History and a Medical Assessment Panel Certificate for Mr Geng obtained from iCare. Mr Geng was identified as a result of information contained in the industrial work history of Mr Zhang, which referred to 'other workers' who also worked at Prime Marble. 40 On 10 September 2021 Inspector Ball received an email from iCare enclosing material relating to Mr Geng, including a medical report of Associate Professor McKenzie dated 25 October 2019. Inspector Ball also reviewed material provided by South Western Sydney Area Health Service in relation to Mr Geng. 41 On 21 September 2021 Inspector Ball received copies of the Death Certificate for Mr Zhang and the Death Certificate for Mr Geng. 42 Between November 2021 and July 2022 Inspector Ball took further steps to investigate the two matters. On 1 March 2022 Inspector Ball attended the premises of Prime Marble and conducted interviews with workers. Inspector Ball issued notices under the WHS Act requiring Prime Marble to provide documents and answer questions. 43 On 30 May 2022 Inspector Ball reviewed the material and formed the opinion that Prime Marble had not notified SafeWork of the iCare claim for Mr Zhang or the diagnosis of either Mr Zhang or Mr Geng. 44 On 30 June 2022 Inspector Ball formed the opinion that prior to 2019 Prime Marble had not provided fit testing of respirators or health monitoring to workers undertaking tasks relating to cutting, polishing or shaping engineered stone. Inspector Ball formed the view that neither Mr Zhang or Mr Geng had been the subject of health monitoring reports or fit test reports prepared by Prime Marble. 45 In July or August 2022 Inspector Ball formed the opinion that: 'The two workers, Mr Zhang and Mr Geng, were very likely to have been exposed over a period of time while working for Prime Marble and Granite Pty Ltd to high levels of respirable crystalline silica dust during work tasks, that could have caused the adverse health effects on their lungs.' 46 On 5 August 2022 Inspector Ball formed the opinion that sufficient evidence had been gathered that Prime Marble had contravened its duty pursuant to s 19(1) of the WHS Act, in relation to Mr Zhang and Mr Geng."
2. His Honour made it clear that the test with which s 232(1)(a) was concerned involved the question of when the regulator became aware of the "offence": "47 Section 232(1)(a) does not focus upon when the Regulator had sufficient evidence to prosecute. It asks when the Regulator became aware of the offence. Thus the evidence of Inspector Ball is not directly relevant to the present issue, except to demonstrate that the various facts discovered by Inspector Ball were not known to SafeWork prior to 31 March 2021." [Emphasis added]

Prime Marble's submissions

1. Section 232(1)(a) of the Act requires a factual determination: SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 at [22] per Russell SC DCJ. The question is whether the offence came to the notice of SafeWork more than two years before the proceedings were commenced by summons on 30 March 2023. If they were, the proceedings are an abuse of process. SafeWork bears the onus of establishing that the proceedings were brought within time: Cumberland Council v Younan [2018] NSWLEC 145 at [57] per Robson J; M & S Investments (NSW) Pty Ltd v Affordable Demolitions & Excavations Pty Ltd [2023] NSWLEC 65 at [56] per Pepper J.
2. An offence first comes to the notice of the regulator when it has information sufficient to give reasonable grounds for a belief that the offence has been committed: Witheyman v Van Riet (2008) 185 A Crim R 492; [2008] QCA 168 at [8]-[9]. It is not necessary that the regulator was actually in possession of evidence capable of indicating that the offence had been committed, although possession of evidence will be sufficient to establish the reasonable grounds test. Reasonable grounds requires the existence of facts which are sufficient to induce a belief in the existence of those grounds in a reasonable person: George v Rocket (1990) 170 CLR 104; [1990] HCA 26 at 112. It is not necessary for the person actually to hold the belief.
3. It is not necessary for the regulator to have notice of the identity of the offender: Witheyman at [15]; Somerville at [63]. Nor is it necessary, in the context of the prosecution of an offence contrary to s 32 of the Act, for the regulator to have notice of the identity of any particular worker put at risk of serious illness because of a breach of the duty under s 19(1) of the Act.
4. In order to have notice of an offence, the regulator must have information as to both the essential legal elements and the essential factual particulars of that offence. The essential legal elements of an offence contrary to s 32 of the Act are set out above at [3]. No essential factual particulars attach to the first element concerned with the legal duty imposed by s 19(1) of the Act. The essential factual particulars attaching to the second legal element are contained at [15] of Annexure A to each of the summonses, and include an asserted failure on the part of Prime Marble to develop, implement and enforce a safe work system for the production of the generation of airborne RCS while cutting manufactured stone products.
5. Prime Marble has accepted that the evidence in this case establishes that SafeWork, on a date earlier than 30 March 2021, had notice of the first two elements of the offences charged, as well as the essential factual particulars attaching to the second element, namely that Prime Marble had a health and safety duty and that there had been a failure to comply with that duty by failing to develop, implement and enforce a safe work system for the production of the generation of airborne RCS.
6. As Prime Marble's submissions make plain, the third element is the contentious element. Clearly in November 2017, SafeWork had notice that the individual workers referred to in the Workplace Hygiene Monitoring Report were exposed to the risk of serious lung disease, but the primary judge determined that it was the identification of Mr Zhang and Mr Geng and the information received in 2021 in respect of them which ultimately then gave the regulator notice of the offences: judgment at [50]. Prime Marble submitted that this was an error: it was not necessary for SafeWork to be aware of the existence of those particular individuals exposed to the risk in this case in order to have notice of the offence. Prime Marble submitted that once the regulator had notice that any worker or workers were subject to the relevant risk in breach of the legal duty imposed by s 19(1), SafeWork was on notice of the offence pleaded in the summons. In other words, each offence charged is exactly the same offence as that allegedly being committed in 2017. In the circumstances of this case, the identification of Mr Zhang or Mr Geng was not an essential ingredient of the offence of which the regulator required notice or information before the proceedings could be brought.
7. The question of particularisation, and whether particulars are essential factual elements, is really a question of interpreting the offence-creating provision with a view to identifying what the prosecution needs to prove. The classification of a factual assertion by the prosecution as an element at one end of the spectrum, a mere fact at the other end of the spectrum, and an essential fact perhaps somewhere in between, permits of no bright lines: Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 at [72], per Button J. No single test can sensibly be applied to all cases. The task should be approached, not by employing some verbal formula, but by having regard to the nature of the offence in question and the particular facts and circumstances of the case: Director of Public Prosecutions (Cth) v Citigroup Global Markets Australia Pty Ltd (No 1 Indictment) [2021] FCA 757 at [94]. The rationale for the requirement of particularisation is seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [26].
8. Unlike cases where the offending attaches to conduct directed towards an individual, the gravamen of an offence contrary to s 32 of the Act is not concerned with to whom that conduct is directed. Rather, it is the failure to do something, which creates a risk. It is the creation of that risk, and any worker being exposed to it, which establishes the offence. The criminality focuses on the exposure of an individual to the relevant risk by reason of the failure to comply with the relevant duty rather than on the identification of that individual. This is why there are examples of prosecutions for offences contrary to s 32 of the Act where multiple workers are pleaded in a single offence, something that would, for example, be impermissible when prosecuting a defendant for an assault or murder: see, for example, Safework NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131 (three workers); McColm v Hamilton Blasting Services Pty Ltd; McColm v Hamilton [2021] NSWDC 688 (11 workers relating to a single incident which occurred on 10 April 2018). In each of those cases, it would have been no answer to the charge to establish that one or more workers were not exposed to the relevant risk, if the prosecution was nonetheless able to establish another worker or workers were so exposed.
9. Prime Marble emphasised that one of the objects of the Act is to protect workers against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3(1)(a). Viewing s 32 through the prism of that object, the precise identity of who was exposed to the relevant risk is not the gravamen of the offence. Rather, it is the risk of harm that the defendant's failure has caused. It is not necessary that harm has already befallen a worker for an offence to have been committed: Kirk at [13]; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [22]. "Risk" means the mere possibility of danger, and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171; Abigroup Contractors Pty Ltd v WorkCover Authority (NSW) (2004) 135 IR 317; [2004] NSWIRComm 270. The word "exposes" merely refers to a person who was sufficiently proximate to the risk at the relevant time for the risk possibly to impinge upon the person's safety: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37 at [123].
10. In this case, SafeWork was aware of the existence of multiple individuals exposed to precisely the same risks pleaded in the two charges from 20 November 2017, when the Workplace Hygiene Monitoring Report was prepared. In these circumstances, lack of awareness of the existence of any particular individual exposed to the risk of death or serious injury resulting from or caused by Prime Marble's alleged failure to comply with the duty under s 19(1), at that time, did not mean that SafeWork did not have notice of the offence. If the proceedings had been commenced within two years of 20 November 2017, provided the prosecution could have established that at least one worker was exposed to the relevant risk, that would have been sufficient. The way the prosecution decides to plead its case for a particular offence does not answer the question of when that offence first came to its notice.
11. By determining that the proceedings were commenced within time having regard to when SafeWork became aware of the existence of Mr Zhang and Mr Geng, the primary judge was in error. The charge pleaded in each summons is the same offence of which SafeWork had notice in 2017.

SafeWork's submissions

1. SafeWork submitted that the proper interpretation of s 232(1)(a) requires no more than a plain reading of its text. What is required for an offence to come to the notice of the regulator is not the same as notice of an incident or an injury. It requires that the regulator must be in possession of material or information with probative value capable of establishing an objective basis for the formation of a reasonable belief that all of the elements of an offence could be established.
2. In Somerville, the relevant provision in the National Parks and Wildlife Act 1974 was in similar terms to s 232: 190 Time within which proceedings may be commenced (1) Proceedings for an offence under this Act or the regulations may be commenced: (a)… (b) within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.
3. This Court in Somerville applied the following principles with respect to the determination of the question of when the offence first came to notice of the regulator: 1. The onus is on the defendant to establish on the balance of probabilities, in line with s 141(2) of the Evidence Act 1995, that evidence of the offending came to the attention of the regulator earlier than the date specified in the summons; 2. A regulator may have reasonable grounds to believe an offence has been committed, sufficient properly to exercise statutory investigation powers, but not yet have evidence of the commission of an offence for the purposes of the time limit provision. In other words, time will not necessarily, and is not likely to, run from the time the investigation starts, but rather from the time the investigation obtains evidence that an offence has been committed; 3. Evidence of the alleged offence means "evidence capable of indicating that an offence has been committed"; 4. The question of when time starts to run is ultimately a question of fact to be adjudged applying the words of the relevant limitation provision to the facts of the given case; 5. The issue is to be judged in relation to the contemporaneous knowledge of the prosecutor and not by hindsight. Evidence obtained by the prosecutor before evidence of the commission of the offence first came to its attention might be admissible as circumstantial evidence in an eventual hearing. However, it does not follow that such evidence constituted evidence of the commission of the offence.
4. Contrary to Prime Marble's submissions, SafeWork submitted that, while proceedings for offences are "risk based" prosecutions, it is still necessary to identify the individual or individuals, such as Mr Zhang and Mr Geng, whose health and safety is said to have been exposed to the pleaded risk.

His Honour's reasoning

1. His Honour dealt with the requirement concerning notice of the offence in the following terms: "[50] The third essential element of a s 32 offence requires the prosecutor to prove beyond a reasonable doubt that 'the failure exposes an individual to a risk of death or serious injury or illness'. In the case of the two summonses under consideration, the individuals said to have been exposed to a risk of death or serious injury were Mr Zhang and Mr Geng. The evidence shows that the Regulator was not even aware of the existence of either Mr Zhang or Mr Geng prior to the receipt on 3 February 2021 of a NSW Ministry of Health Silicosis Notification in respect of Mr Zhang. The Notification indicated that Mr Zhang had died on 7 June 2020. This Notification did not mention Mr Geng. [51] The Notification did not draw a connection between Mr Zhang's illness and death, and his employment with Prime Marble. Inspector Weller did not become aware of that connection until he received the Industrial History for Mr Zhang from iCare on 31 March 2021. That Industrial History not only disclosed that Mr Zhang had been employed by Prime Marble in an occupation where he was exposed to silica dust, but also stated: 'Based on the available information it would seem reasonable to conclude Mr Zhang was exposed to silica dust as a consequence of his work fabricating artificial stone bench tops during these years. Many other workers in this industry have claimed heavy exposure as a consequence of poor industrial hygiene practices and inadequate personal protective equipment.' [52] The material obtained by Inspector Weller on 31 March 2021 included the assessment certificates provided by iCare which showed that Mr Zhang had died on 17 June 2020 as a result of silicosis attributable to his exposure to the inhalation of dust. [53] It was not until this material was received that the Regulator became aware of the following: (1) Mr Zhang had been employed between 2013 and 2019 by Prime Marble. (2) Mr Zhang had been exposed in that employment to a risk of death or serious injury or illness as a result of his exposure to silica dust. (3) It was a reasonable conclusion that his exposure to silica dust during his employment with Prime Marble was due to poor industrial hygiene practices and inadequate personal protective equipment i.e. failures on the part of Prime Marble. [54] I find that it was not until this material was obtained by Inspector Weller from iCare that the Regulator had notice of the commission of the offence. Inspector Ball continued enquiries on behalf of SafeWork after Inspector Weller received that material. Inspector Ball was investigating the matter with a view to determining whether or not to bring a prosecution. Inspector Ball was gathering evidence which could be used in a prosecution. It was not necessary, as at 30 March 2021, for SafeWork to have sufficient evidence to launch a prosecution. Section 232 speaks not of having the evidence to prosecute an offence, but of having notice of the offence. Such notice was not available until the iCare documents were received by Inspector Weller on 31 March 2021. [55] The same reasoning applies to the offence involving Mr Geng. Mr Geng was not named in the Industrial History of Mr Zhang. However, there was oblique reference to another worker with a 45% level of disablement. Inspector Weller did not receive iCare documentation regarding Mr Geng until it was sent by email on 17 May 2021. When that material was received the Regulator became aware of the three elements of the offence required under s 32 of the WHS Act. It then knew that Mr Geng had been exposed to a risk of death or serious injury, and that such exposure had been caused by the failure of Prime Marble to comply with its health and safety duty when it employed Mr Geng in work involving exposure to silica dust. [56] Senior Counsel for the defendant submitted that when SafeWork had the report of Inspector Seneviratne in 2017, which disclosed that on one day on which air monitoring was carried out in relation to six workers employed by Prime Marble, that meant that it had notice of the commission of the offence which is the subject of each Summons. I reject that submission. The air monitoring on one particular day, which showed exposure above the WES, did disclose an offence to the Regulator. However it was an offence under the WHS Regulation 2017 of failure to comply with the exposure standard. The present proceedings do not charge Prime Marble with that offence, and indeed would be out of time to do so. [57] Silicosis is an accumulative disease. Silica particles enter the lung and cause scarring and fibrosis. This makes it more and more difficult to breath. Silicosis can be caused by heavy exposure over a short period or low to moderate exposure over a lengthy period of years. Exposure on one day will not cause silicosis. This is recognised in both Summonses, which specifically refer to exposure to RCS 'over an extended period'. [58] It was not until the iCare material was received by Inspector Weller in 2021, that the Regulator was aware, not only that Mr Zhang and Mr Geng had developed silicosis, but that they had developed it as a result of significant exposure over a lengthy period during their employment with Prime Marble. [59] The report of Inspector Seneviratne in 2017 and the Improvement Notice issued by Inspector Lau in 2018, did not inform the Regulator of the commission of the two offences charged, which specifically relate to Mr Zhang and Mr Geng, and which specifically relate to those two workers developing silicosis as the result of long term exposure to silica dust. [60] Senior Counsel for the defendant submitted that an offence first comes to the notice of the Regulator 'when it has such information as to give reasonable grounds for a belief that the offence has been committed', citing Witheyman v Van Riet [2008] QCA 168. The information obtained in 2017 and 2018 gave the Regulator no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty. [61] Air monitoring tests carried out on one day in 2017 did not give the Regulator notice, either in respect of Mr Zhang and Mr Geng, or indeed in relation to the six workers the subject of the testing, that the exposure standard was being breached on a long term basis, sufficient to expose any worker to the risk of silicosis. It would be different if SafeWork had followed up the air monitoring testing at regular intervals, which might have informed it that appropriate precautions were not being taken in the long term, rather than just on the day of the testing. Indeed, it is unfortunate that those matters were not pursued."

Consideration

1. For the purposes of determining whether proceedings have been commenced within time in accordance with s 232(1)(a), the relevant inquiry must be directed to the question of when the regulator first gets notice of the offence alleged in the summons commencing the proceedings. The s 32 offence will be complete when the alleged failure exposes an individual to a risk of death or serious injury or illness. The offence is not complete only when it can be said that some particular consequence or particular result caused by the alleged exposure comes to the notice of the regulator. The ordinary English meaning of the words in the section is that the offence is complete when the regulator has notice of the risk that is alleged to be associated with the exposure.
2. It can be accepted that his Honour's observation, that exposure on a single day will not cause silicosis, is correct. However, proof that the exposure has caused such a serious injury or illness, or that death has resulted, is beside the point for the purpose of determining when time begins to run. In the present case, nominating the date from which the limitation period commences focuses attention upon s 32(c) of the Act. That section is not concerned with the question of whether or not the risk has materialised in the sense that the exposure leads, or has led, to death or serious injury or illness or whether the regulator can prove any of these things in due course. Section 32(c) refers to a failure which exposes an individual to a risk of death or serious injury or illness, not to a failure which causes death or serious injury or illness.
3. It is reasonably apparent from the terms of the provision creating the offence, that its aim or purpose is the prevention of death or serious injury or illness. If it were otherwise, it might be expected that s 32(c) would not refer to a failure which exposes an individual to a risk but instead to a failure that causes death etc. Focusing on the risk necessarily brings forward the time at which the offence will have been committed and, relevantly in this case, the date on which the regulator had notice for the purpose of the limitation period in s 232(1)(a). This is consistent with the object of the Act in s 3 "to secure the health and safety of workers and workplaces".
4. Each party to this appeal referred to the decision of this Court in Grasso. That case was also concerned with s 32 of the Act. Walton J helpfully recited the principles that are under scrutiny in the present appeal: "[21] An offence pursuant to s 32 of the WHS Act for a breach of s 19 duty is directed to the risk to health and safety and is not dependent on the manifestation of the risk: Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; [2016] VSCA 55 at [682]. [22] As the High Court noted in Kirk, it is not necessary that a worker has suffered injury or illness for there to have been a breach of the duty. [23] In Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [53], the NSW Criminal Court of Appeal held: [53]… It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring… [24] Further, in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [55], the NSW Court of Criminal Appeal held: [55] While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised… [25] A breach of s 19(2) of the WHS Act may occur in consequence of a failure to take a measure which would have been managed or mitigated a risk to the health, safety and welfare of a person not in the employ of the employer, even if the measure does not entirely eliminate risks: Bulga at [118]. However, exposure to risk must be real and not theoretical."
5. The same issue was considered by Walton J in Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 at [157]-[161] as follows: "[157] An offence pursuant to s 32 of the WHS Act for a breach of a s 19 duty is directed to the risk to health and safety and is not dependent upon the manifestation of the risk: Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676: [2016] VSCA 55 at [682]. As the High Court noted in Kirk at [13], it is not necessary that the worker has suffered injury or illness for there to have been a breach of the duty. [158] A breach of s 19(1) of the WHS Act may occur in consequence of a failure to take a measure which would have managed or mitigated a risk to the health, safety and welfare of a person not in the employ of the employer, even if the measure does not entirely eliminate risks: Bulga at [118]. However, exposure to risk must be real and not theoretical. [159] The duty created is directed to obviating risks to safety at the workplace, even absent an actual incident causing injury. The duty is both preventative and remedial in nature: Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297 ('Morrison') at [97(3)] and [97(4)] and WorkCover Authority (NSW) (Inspector Legged) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 ('Coffey Engineering') at [16] approving WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268 at [20]; Abigroup at [316]. In Bulga, the Court of Criminal Appeal found (at [124]): [124] The appellant contended that the requirement was to avoid exposure to risk, rather than to prevent an actual occurrence. This may be accepted, however, it does not mean that the section cannot be breached by the failure to take action to prevent a risk, to which an employee was exposed, from crystallising. To reach a contrary conclusion would be to ignore the self-evident fact that the duty will arise in circumstances where there is an exposure to a risk in respect of which preventative measures can be taken. (see also Hunter Quarries Pty Ltd v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 ('Hunter Quarries') at [69]). [160] Thus, it is wrong, in considering whether a breach has occurred, to reason from the actual incident causing injury 'as such an approach may lead to a misunderstanding of the real facts on which a charge is based': Morrison at [97(5)]. [161] Further, the observations of the Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [55], (Basten JA with whom Beazley P (as her Honour then was) and Wilson J agreed) are apposite in this respect (and also address the meaning of 'risk'): [55] While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised. While the accident may demonstrate the existence of a risk, it may not demonstrate that the risk was prospectively foreseeable, nor that the consequences were necessarily serious; generally, the precise circumstances of the accident should not be relied on to define the risk. The word 'risk' is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]; R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. Relevant risk to the commission of a s 32 offence is the risk of death or serious injury."
6. Counsel for SafeWork made the following submission: "39. Relevantly for the purposes of this application, Cavanagh J stated in Grasso, that it is important not to conflate non-compliance with a health and safety duty with the issue of causation, which is an essential element of the offence: Grasso at [99]. The applicant, in support of its contention as to when the offence first came to the notice of the regulator, conflates the issue of when potential non-compliance with a health and safety duty came to the notice of the regulator (which is but one element of a s 32 offence), with when notice of all the elements of the offence, and in particular the issue of causation (being the third element) first came to the notice of the regulator."
7. With respect, this analysis misunderstands the reference by his Honour to "causation". Paragraph [99] of Grasso is in these terms: "[99] Further, it is important not to conflate non-compliance with a health and safety duty with the issue of causation which is an essential element of the offence. Breach must be assessed prospectively but causation must be assessed having regard to what actually occurred."
8. It seems to me to be fairly clear that his Honour was there discussing the issue of whether the prosecution was able to prove a causal connection between the alleged breach and exposure of an individual to a risk of death or serious injury or illness. In simple terms, by way of example, proof that an individual died of silicosis after exposure to silica dust at the defendant's factory might establish causation in the sense of consummating the offence. That is an entirely different issue to whether, when considering when the regulator first has notice of the risk of death or serious injury or illness, it must be shown that the risk had by then materialised in the sense that it caused those things. The third element of s 32 may be understood as the causation element in establishing the commission of the offence in the way in which Cavanagh J was considering it. In contrast, for the purposes of s 232(1)(a) of the Act, the two year period runs from the time when the regulator has, among other things (viz. s 32(a) and (b)) notice of the risk that might materialise, not that it has done so. The issue of causation considered by Cavanagh J has nothing to say about when notice of the unmaterialised risk first comes to the notice of the regulator.
9. For these reasons, I reject the reasoning adopted in written submissions relied upon by SafeWork in this Court as follows: "53. As is evident from the decision of this Court in Grasso, the identification of an individual (whether a 'worker' for the purposes of the s 19(1) duty, or 'another person' for the purposes of the s 19(2) duty) who was exposed to the risk of death or serious injury or illness; and that the relevant exposure of that individual to the risk of death or serious injury or illness resulted from, or was caused by, the failure to comply with the duty, is an essential legal element of a s 32 offence, and therefore it is necessary for the regulator to have notice of the identity of any worker said to be the subject of the offence."
10. The issue in this Court is when the limitation period begins to run. That issue calls for identification of the date when SafeWork had notice of the risk of death or serious injury or illness to which an individual has been exposed by reason of the failure to comply with the relevant duty. It is not concerned, like the above submissions, with the need for SafeWork to establish all of the essential legal elements of the offence in the course of a prosecution for an alleged breach of s 32.
11. At [60] of his careful judgment, Russell SC DCJ said that the information obtained in 2017 and 2018 gave SafeWork no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty. Although it may be accepted for the purposes of the argument that his Honour's conclusion is correct, and that SafeWork did not learn about Mr Zhang or Mr Geng until sometime within a period of two years before the summonses commencing the prosecutions were filed, it is irrelevant. Putting aside the question of whether the identification of these workers amounts to an element of the charged offences or only particulars of the offences, SafeWork's notice of the existence or condition of these men is not coextensive with whether SafeWork had notice that an individual had been exposed to the relevant risk.
12. The discussion in Grasso, set out above, included a reference to the decision of the High Court of Australia in Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Prime Marble relies upon this authority and, in particular, what the majority said at [12]-[14] as follows: "[12] Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to 'the act or omission concerned' which 'constituted a contravention' of s 16 or s 15 respectively. Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years 'after the act or omission alleged to constitute the offence'. [13] To this point reference has been made to the identification of what should have been done by an employer, which will arise in a case such as this, where an employee has been harmed. It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, s 15 may be contravened. An obvious example would be the failure to guard dangerous machinery. Upon conviction of such an offence the Industrial Court may order the employer 'to take such steps as may be specified in the order for remedying that matter' within a prescribed period, where it is 'within the person's power to remedy', in addition to imposing a penalty. It would be necessary for the charge to identify the 'matter' to be remedied to enable such an order to be made. [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence." [emphasis added]
13. At [83] of its written submissions in this Court, SafeWork said this: "In the circumstances of these offences, the existence of Mr Zhang and Mr Geng are both essential factual particulars of the offence, as well as essential to the establishment of the legal elements of the s 32 offence. It is the alleged failures on the part of Prime [Marble] to comply with the duty it had to them, as workers, which exposed them to a risk of death or serious injury or illness."
14. It will be apparent that this submission is really directed to proof of the commission of the offences. It is inapposite in my view as a submission concerning when SafeWork first had notice of the offence. It is clear from Kirk and Grasso that the reference to "the offence" in s 232(1)(a) must be a reference to an alleged offence. In this case, the offence is one allegedly in contravention of s 32 of the Act, and one of the elements of that offence is the exposure of "an individual to a risk of death or serious injury or illness". When SafeWork has notice of the elements of the offence, the two-year period for the purposes of s 232(1)(a) commences.
15. SafeWork's submissions in this Court supported the correctness of his Honour's decision and in so doing adopted the significance placed by his Honour on SafeWork's knowledge, or lack of knowledge, of Mr Zhang and Mr Geng. Understandably in those circumstances, Safework did not address the different question of whether it had notice of the risk to which s 32(c) refers by reason of the matters that were drawn to its attention in Inspector Seneviratne and Shankar's Workplace Hygiene Monitoring Report dated 20 November 2017. In other words, SafeWork did not deal with the significance of the fact that it had notice of the conditions observed and noted by the inspectors concerning air quality standards that "the personal air monitoring results indicate that all workers doing polishing tasks at Prime Marble & Granite are exposed to RCS dust concentrations well above the current Australian WES".
16. I consider that the existence of knowledge on the part of SafeWork of these dust concentrations must necessarily equate to notice of exposure of Prime Marble's workers to the relevant risk. It must follow that the summons in each case was filed more than two years after such notice was received. His Honour's decision that notice is dependent on knowledge of Mr Zhang and Mr Geng is an error of principle. The continuation of the proceedings is therefore an abuse of process. In these circumstances, I would make the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Vacate the orders made in the District Court on 13 February 2024 and, in lieu thereof, order that summons 2023/103537 and summons 2023/103574 be dismissed.
17. HAMILL J: I have read the draft judgments of Harrison CJ at CL and N Adams J. I agree with the orders proposed by their Honours. I agree with the reasons provided by the Chief Judge and with the additional observations of N Adams J at [54] - [60]. As to the standard of review discussed by N Adams J at [51] - [53], I am inclined to agree with her Honour that the so-called "correctness" standard applies. However, as her Honour observes, in the circumstances of this case, the result will be the same whatever standard of review is adopted.
18. N ADAMS J: I agree with Harrison CJ at CL for the reasons provided by his Honour. I wish to provide some additional reasons in relation to two aspects of this appeal; namely, the relevant standard of appellate review, and when it is that an "offence first comes to the notice of the regulator" for the purposes of s 232(1)(a) of the Work Health & Safety Act 2011 (NSW) ("the WHS Act").
19. The applicant submitted that the standard of appellate review for this interlocutory appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) was the "correctness" standard based on the recent decision in Koschier v R [2024] NSWCCA 24 ("Koschier"). That appeal concerned a decision refusing an application to permanently stay criminal proceedings. Bell CJ (with whom Harrison CJ at CL and Chen J agreed) noted the previous line of authority in this Court describing such a decision as discretionary in nature, requiring "House" error to be established (House v The King (1936) 55 CLR 499; [1936] HCA 40), but held that, following the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, such a decision can no longer be considered to be discretionary and the correctness standard applies: at [33]-[34].
20. The respondent's ultimate position at the hearing of this appeal was that although it would be open to find that House error needed to be established, it was accepted that the decision under appeal was a binary one and that it "may well be that the correctness standard is the applicable standard." [1] The respondent's position was that whatever standard applied there was no error in the decision of the primary judge.
21. For my part, I am satisfied that the decision under appeal is of the same character as a decision whether to grant a stay in that there are only two possible outcomes. Further, the outcome in the decision under appeal concerned the construction of ss 32 and 232 of the WHS Act and was not evaluative in nature. Accordingly, I am satisfied that the correctness standard applies. Such an appeal is by way of rehearing: Koschier at [35]. However, given the way in which the appeal was argued, nothing really turns on this for the purposes of the present appeal and I would have been satisfied that leave should be granted and the appeal upheld had the applicant been required to establish House error in any event.
22. Turning to the second matter, the statutory time limit in s 232(1)(a) of the WHS Act commences within two years after the "offence first comes to the notice of the regulator". As for what is required before it can be said that an "offence" has come to the "notice" of the regulator for the purposes of s 232 (1)(a), the primary judge applied the test endorsed in Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168; (2008) 185 A Crim R 492 ("Witheyman"). In Witheyman, the statutory time limit was in the Vegetation Management Act 1999 (Qld) and was, relevantly, expressed as "within 1 year after the offence comes to the complainant's knowledge ….". The Queensland Court of Appeal confirmed the construction applied by both the magistrate and then the District Court judge; namely, that "knowledge" in that context was when the complainant had such information as to give reasonable grounds for a belief that the offence has been committed: at [8]-[9].
23. In applying this test, the primary judge found that the information obtained in 2017 and 2018 gave the regulator "no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty": see SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17 at [50].
24. In the present appeal, rather than accepting the applicant's submission that the test is that stated in Witheyman, the respondent instead relied on the decision of this Court in Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93 ("Somerville") for the relevant test. That decision concerned s 190(1)(b) of the National Parks and Wildlife Act 1974 (NSW), which was in slightly different terms to s 232. Section 190(1)(b) provides that proceedings for an offence under that Act or regulations may be commenced "within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer". In that statutory context, Adamson J (as her Honour then was) (with whom Johnson and Bellew JJ agreed) observed at [62] that a conclusion that the investigator had reasonable grounds to believe that the offences had been committed (for the purposes of the execution of the search warrant in that matter), did not necessarily mean that evidence of the alleged offences had come to the investigator's attention for the purposes of s 190(1)(b). I am satisfied that the different statutory language in Somerville explains this distinction drawn by her Honour and that Somerville is not otherwise inconsistent with the decision in Witheyman which her Honour also refers to at [63]. Accordingly, to the extent that there was no clear agreement between the parties on this issue, I am satisfied that the relevant test is as stated in Witheyman.
25. Applying that test to the facts in this appeal, it was common ground that on 30 August 2017 an Inspector of the regulator tested the exposure of workers on duty that day to respirable crystalline silica ("RCS") dust which led him to opine that the workers "may be at risk of serious health effects if not adequately protected". The question is whether at that time the regulator had reasonable grounds to believe that the "offence" had been committed.
26. The primary judge observed at [57]-[59] that silicosis is an accumulative disease and that exposure on one day will not cause silicosis. His Honour relied on this evidence in support of his finding that the regulator had no information on 30 August 2017 of an offence exposing either of the two workers specified in the summonses to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty. The difficulty with this conclusion is that it overlooks the work to be done by the word "risk" in s 32(c) of the WHS Act.
27. As was noted by Basten JA (with whom Beazley JA and Wilson J agreed) in Unity Pty Ltd v Safework NSW [2018] NSWCCA 266 at [55], prosecutions of this nature are rarely if ever brought unless there has in fact been a serious injury or death. It is no doubt easier to establish the relevant risk for the purposes of s 32(c) if that risk has already materialised but as Walton J (with whom Beech-Jones CJ at CL and McNaughton J) observed in Saunders Civilbuild Pty Ltd v Safework NSW [2023] NSWCCA 261 at [157], s 32 of the WHS Act is directed at the risk to health and safety and is not dependent upon the manifestation of that risk. So much is apparent from the terms of s 32(c) itself.
28. In the present case, the regulator had reasonable grounds as of 30 August 2017 for a belief that one or more individuals were being exposed to a risk of death or serious injury or illness by exposure to RCS dust. That is when the two-year limitation period commenced for the purposes of s 232 of the WHS Act.

Endnote

1. Transcript 17 May 2024 page 18 at line 15. 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: 24 June 2024