SafeWork NSW v Edstein Creative Pty Ltd

Notice of Motion filed on 17 February 2023

1. This judgment concerns a Notice of Motion filed on 17 February 2023 by the prosecutor SafeWork NSW (SafeWork). The orders sought are as follows: "1 That the order made on 14 April 2022 staying the proceedings be dissolved. 2 Leave be granted to the Prosecutor to amend the Summons filed on 24 June 2021 in accordance with the term of the proposed Amended Summons annexed as C of Exhibit TLS-01 to the Affidavit of Thomas Lyndon Sorrenson affirmed on 17 February 2023; and 3 Costs of the motion be costs in the cause."
2. The evidence in support of the Notice of Motion was the affidavit of Mr T Sorrenson, together with Exhibit TLS-1 (Exhibit PX 1). There was no objection to Mr Sorrenson's affidavit, and he was not required for cross-examination.

Evidence of Mr Sorrenson

1. Mr Sorrenson is a solicitor employed by the Department of Customer Service which acts for SafeWork in these proceedings. He has carriage of the matter on behalf of SafeWork. Mr Sorrenson sets out a history of the procedural steps taken in the matter and summarises the material contained in the original Brief of Evidence served upon Edstein. It is necessary to refer to some of the documents which are part of PX 1, in some detail.
2. By a letter dated 13 February 2023 SafeWork wrote to the solicitors for Edstein providing further and better particulars directed towards satisfying the requirements of the first judgment. The letter in pars 11-46 provided a narrative setting out the essential facts which would be alleged in the prosecution case. This included reference to documents already served upon the defendant in the original Brief of Evidence, and also to expert reports of Ms Cole (occupational hygienist) and Associate Professor Yates (thoracic physician).
3. The letter then dealt with the three classes of particulars which were the subject of order 1 in the first judgment.
4. In relation to when it was alleged that the offence was committed SafeWork said: "1. When it is alleged that the offence was committed 48. The Charge Period is from 1 January 2012 to 1 November 2018. 49. The pleaded offence is the Defendant's continuing failure throughout the Charge Period to comply with its health and safety duty, in particular by failing throughout the Charge Period to take the Particularised Measures so as to eliminate, or if not reasonably practicable to eliminate, minimise the pleaded risk to AB. Accordingly, it is alleged the offence occurred throughout the Charge Period. 50. It is not alleged that AB was exposed to the risk on a particular date or occasion. The prosecution case is not based on the generation of RCS dust at particular airborne concentrations or particular concentrations that exceeded the WES on particular dates or at particular locations."
5. In relation to where it was alleged that the offence was committed, SafeWork said: "2. Where it is alleged that the offence was committed 51. The prosecution case is that the offence arose from the continuing failure to take the Particularised Measures to prevent repeated inhalation of RCS when installing manufactured stone products at customer's premises. The location of the offence was accordingly the customer premises where the Defendant's installers, in particular AB, worked as an installer of manufactured stone products (or a supervisor of installers). 52. It is the prosecution case that AB performed installation work and supervision of installers at various customer premises throughout the Defendant's 'Southern area', being those customers allocated to installation workers whose home base were the Defendant's premises at Sandgate, Newcastle. These customer premises were overwhelmingly located in the Newcastle and Hunter regions in NSW. To be clear, it is not alleged that the offence was committed at any of the Defendant's premises, including Sandgate or the location where the products were fabricated. 53. In respect to where AB's 'workplace' was the prosecution relies upon the definition of 'workplace' in section 8 of the Act, which relevantly states: (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section, place includes­ (a) a vehicle... 54. The text of s. 8 of the Act and the relevant caselaw makes clear that the term "workplace" is to be given a broad application. See for example, WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263 (in relation to the former Occupational Health and Safety Act 2000 (NSW)), paragraphs 13 to 21. 55. Details in relation the work performed by AB from the Sandgate premises are supplied at paragraphs 4, 13 - 50 of the SOF. 56. Based on information provided by AB (see below) he was present at several thousand different job sites at which Installation Work was conducted over the Charge period. 57. The Prosecutor is unable to provide particulars of the dates and locations of each specific installation job undertaken by the Defendant at which AB was present within the Charge Period. This is information that might be expected to be within the knowledge of the Defendant. Evidence from AB 58. In support of its case as to where the offence occurred the prosecution relies on the answers provided by AB in an interview with SafeWork NSW on 22 March 2021 (BOE 5.15) (AB ROI). 59. In particular the answers provided by AB extracted below: Q79 So what were your tasks in that work? A So we used to start here in the morning and load our jobs for that day. I used to then drive the installation vehicle to whatever jobsites I was scheduled to attend, install their benchtops and then move onto the next job returning back to Sandgate in the afternoon. Q81 Where did you do your installation work? A Everywhere. From Sydney to Tamworth basically operating out of Sandgate. Q82 What kind of worksites did you install? A Building sites, client's homes which is sort of the mix of it, I guess. New homes and renovations jobs. Q83 What do you think over time mostly? What were they, homes or in commercial sites? A It was a pretty general mixture of all three. So we did do a lot of commercial stuff then but it was a mix, pretty even mix of client's homes, builders and commercial jobsites. Q88 How much time did you normally spend at a site during an installation? A Depended on the job and the complexity of it. Roughly two hours, two and a half hours for an install. Q89 And how many times a day did you do an installation? A Again depended on the size of the jobs. A single piece of stone in a client's home may take half an hour or 20 minutes, 10 minutes to clean up and go, another job may take three hours. So depending on the size of the jobs and location three to four jobs a day. Q127 Did the builders require you to have any specific controls when you did that work? A Not that I can remember, no."
6. In relation to the identity of each worker said to have been exposed to the pleaded risk, SafeWork provided the following particulars: "3. The identity of each worker said to have been exposed to the pleaded risk 60. The prosecution case, as pleaded in the proposed Amended Summons, is limited to the alleged exposure of AB to the pleaded risk. 61. The evidence will show that when AB was present at a customer premises when installation work was being done there were one or two other workers of the Defendant also present. However, the prosecution does not rely upon the exposure of other workers to the pleaded risk to prove its case against the Defendant."

Consideration of the Particulars Provided

1. The SafeWork particulars make it crystal clear that the only worker said to have been exposed to the pleaded risk, upon which the prosecution is based, is AB. This means that SafeWork has complied with order 1(c) of the first judgment. Further, senior counsel for SafeWork, during oral submissions on the Notice of Motion, repeated many times that SafeWork would only be proceeding in relation to an allegation that it was AB who was exposed to the pleaded risk.
2. In relation to particulars of when the offence was committed and where the offence was committed, SafeWork submitted (MFI 1, par 53) that it was not in a position to provide particulars of each date, each location, and the level of exposure to RCS that the worker was exposed to on each occasion (although this last matter was not the subject of an order made in the first judgment).
3. SafeWork submitted that Edstein has been charged with one continuing offence between the dates nominated. The allegation is one of a continuing nature over a specified period of time, relating to failure to ensure the health and safety of one employee, AB.
4. The function of particulars in criminal proceedings is to enable a defendant to be aware of the nature of the case it is called upon to meet. In Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 the court stated at [18]: "The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. Giving particulars of the case to be made out has been distinguished from disclosing the evidence by which the case is to be proved, but the distinction is not a clear one and the touchstone must be what is reasonably necessary to achieve the purposes last-mentioned."
5. The particulars provided, and the summary of the relevant evidence provided along with the particulars, makes it plain that the allegation is that AB went out on site for five days a week and did several jobs each day. In oral submissions, senior counsel for SafeWork estimated that AB was out on jobs being exposed to RCS on somewhere between 3,500 and 4,000 occasions.
6. Edstein now has the particulars and the statements in evidence of the persons who SafeWork intends to call to prove the allegations. The charges relate to the whole of the period from 2012-2018, when AB went to the premises of customers of Edstein and worked with engineered stone by cutting, grinding, drilling, or polishing. SafeWork will allege that no appropriate reasonably practicable steps were taken to minimise the exposure of AB to RCS. SafeWork will also allege that from about 2018 onwards, Edstein did take appropriate steps to minimise the exposure of AB to RCS. That evidence will be tendered to prove that such steps were reasonably practicable before 2018.
7. AB is to be called as a witness in the prosecution and his evidence has been served upon Edstein.
8. AB was an employee of Edstein during the entire period between 2012 and 2018. The particulars provided now make it plain that the case to be met is that whenever he was out on site working with engineered stone, and that where such work released RCS, appropriate reasonably practicable steps were not taken at all by Edstein. I find that Edstein, through the supply of the particulars and the outline of the evidence to be called in support of those particulars, is now aware of the case which it has to meet.
9. That was certainly not the position when the first judgment was written, and the Summons was vague about who was exposed, leading to queries as to when and where workers were exposed. Edstein is now in a position to prepare for trial knowing that it must focus upon the work done by AB as an employee, and the precautions, if any, taken by Edstein for the safety of AB while he was out on site working with engineered stone.

Application to Amend the Summons

1. SafeWork also seeks leave to amend the Summons, in accordance with a proposed Amended Summons which is Tab C to PX 1.
2. Paragraph 3 of the proposed Amended Summons pleads that the workplaces where stone products were being installed were the premises of customers of Edstein located in the Newcastle and Hunter regions. Paragraph 4 adds an allegation that besides being in an installer, AB was also a supervisor of installers of manufactured stone product.
3. New pars 6, 7, 8, 9 and 10 make allegations concerning the fact that working with manufactured stone generates high levels of RCS and that inhalation of airborne RCS can cause respiratory diseases including accelerated silicosis. Paragraph 10 says that even where the exposure is below a Workplace Exposure Standard (WES) extended exposure can cause a respiratory illness.
4. Paragraph 13 in the proposed Amended Summons sets out the particulars of Edstein's failure to comply with its duty under s 19(1) of the Act. It lists a series of reasonably practicable measures which it is said Edstein should have taken. Subparagraphs 13e and 13f provide detailed particulars of allegations that Edstein should have had a Personal Exposure Monitoring programme and a Health Surveillance and Monitoring programme to detect and manage levels of exposure to RCS for its workers.
5. Paragraph 14 in the proposed Amended Summons reads as follows: "As a result of the defendant's failures workers, and in particular AB, were exposed to a risk of acquiring serious occupational illnesses."
6. During oral submissions, I expressed the view to senior counsel for SafeWork that this could be seen as a reversion to the original form of the pleading which alleged that several unnamed workers besides AB were put at risk. Upon consideration, senior counsel for SafeWork indicated that par 14 should read as follows: "As a result of the defendant's failures a worker, in particular AB, was exposed to a risk of acquiring serious occupational illnesses."
7. Such a change to the proposed pleading accords with the particulars provided, which state that SafeWork is only relying upon the exposure to risk of AB. It also accords with the assurances, given during oral submissions by senior counsel for SafeWork, that the prosecution was directed towards the exposure of AB to risk and to no other workers.
8. Senior counsel for the defendant raised concerns regarding the use of the word "workers" in subpars 13b, 13d, 13e, 13f and 13g. I do not regard the use of the word "workers" in those parts of the proposed Amended Summons as derogating from the restriction of this prosecution to dealing with AB only. The statutory provision is cast in terms that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking. I regard the use of the word "workers", wherever it appears in the proposed Amended Summons, as no more than a reflection of the terms in which the legislation is cast. It is plain from the proposed Amended Summons, from the particulars already provided, and from the assurances given by senior counsel for SafeWork in oral submissions, that the defendant does not have to meet a case involving exposure of anyone to RCS, apart from the exposure of AB to that substance.
9. Senior counsel for the defendant was also concerned with the allegation in subpars 13a and 13b of the proposed Amended Summons that there should have been steps taken "for the reduction of the generation of airborne RCS". Senior counsel asked rhetorically to what level should the RCS be reduced?
10. The nature of the development of silicosis and related respiratory diseases is that they are accumulative diseases, so that each exposure to RCS leads to further damage inside the lungs. In the proposed Amended Summons, there is no pleading that Edstein should have eliminated all risk from working with engineered stone products, which is a recognition of the fact that dust levels can never be reduced to nil. However, an allegation that there was an obligation to reduce the generation of airborne RCS is clearly an allegation that a worthwhile reduction should be achieved by adoption of the reasonably practicable steps pleaded in par 13 of the proposed Amended Summons. If the evidence discloses that all of those steps were appropriate, and were taken by Edstein, then the prosecutor will not succeed in this prosecution.
11. The prosecutor's case is that taking those steps would have reduced the generation of airborne RCS and having specified the reasonably practicable steps to be taken, there is no allegation that RCS should have been reduced to a particular level. It is plain from a reading of par 13 that the allegation is that the airborne RCS should have been reduced as low as was reasonably practicable by taking the pleaded steps. That does not involve a mathematical level of airborne RCS being achieved.
12. Senior counsel for Edstein also expressed concern regarding the use of the word "including" in the subpars of par 13 of the proposed Amended Summons. Once again, a plain reading of the subpars shows that the only steps which the prosecution allege should have been taken are those set out under the word "including", and senior counsel for SafeWork made it plain during oral submissions that the prosecutor would not be alleging that Edstein should have taken steps which are not specifically pleaded in the proposed Amended Summons.
13. In my judgment in an unrelated matter of SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298, I dealt extensively with the principles applicable to an application to amend a summons in a case brought under the Act. That consideration is at pars [22]-[49] of the judgment. In par [50] in Solveco I set out a summary of the principles which I drew from the cases discussed in the judgment. Those principles are: "(1) The primary issue in the exercise of the discretion to grant leave to amend a charge is whether the defendant would be unfairly prejudiced. (2) The court should consider whether any such prejudice could be overcome by another procedure. (3) A defendant has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of guilt determined by reference to a single charge. (4) The earlier an allegation is raised, the less likely it is that the new allegation will prejudice the right of an accused to a fair trial. (5) It would be a very rare case indeed where a court would refuse to allow the prosecutor to amend an indictment before the trial commences unless the court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended charge. (6) While s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. (7) The circumstances in which the leave may be granted are not confined by the section, although the discretion must be exercised appropriately."
14. Senior counsel for SafeWork in these proceedings referred to the Solveco decision and relied upon my summary of the principles applicable to an application to amend a summons. This was not a matter put in dispute by Edstein.
15. This application has been brought well before a trial. Indeed, it is brought at a time when the issues that have to be faced by Edstein at the trial have only just recently been clarified by the provision of appropriate particulars. There was no submission that the defendant would be unduly prejudiced if an amendment were granted at this stage.
16. I find that there would be great utility to the defendant and to the court in granting the amendment. The proposed amendment rectifies many of the problems which I perceived with the original form of the Summons. It also brings the allegations in the Summons into line with the particulars recently supplied by SafeWork.
17. During oral submissions I expressed concern to senior counsel for SafeWork when reference was made in his submissions from time to time to the Statement of Facts appended to the original Summons. Many of those facts have no relevance to the case as it will be amended. For example, p 3 deals with the involvement of Mr Putney and Mr Whyte-Butler, but they are not part of the prosecution case as it has been re-framed.
18. The prosecutor as indicated in its letter supplying particulars, which also provided a narrative of the prosecution case, will seek to rely upon the expert evidence of Ms Cole and Associate Professor Yates. This should be made plain by a Statement of Facts, in a revised form, being prepared. That new Statement of Facts should excise portions of the original document which are no longer relevant to the prosecution case and should add reference to those matters where evidence has been obtained since the Summons was originally filed. It is a recipe for confusion if Edstein is expected to read through the original Statement of Facts and inform itself, or guess, which provisions are no longer relevant, and which new material really forms part of the prosecution case. Not only would the defendant be assisted if there is a new Statement of Facts but the court would be greatly assisted.

Conclusion and Orders

1. I find that sufficient particulars have now been provided by SafeWork to enable Edstein to know the case that it has to meet.
2. I also find that I should exercise my discretion to grant leave to amend the Summons.
3. The orders of the court are as follows: 1. Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved. 2. Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows: "As a result of the defendant's failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses." 1. Direct the prosecutor to file, with the Amended Summons, an Amended Statement of Facts. 2. Order that the costs of the Notice of Motion be costs in the cause. 3. Stand over to the Work Health and Safety list at 9.30am on 26 June 2023.

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.

Amendments 31 July 2023 - The name of the worker alleged to have contracted accelerated silicosis has been anonymised to "AB". 31 July 2023 - Paragraph format 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: 31 July 2023