SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400 | Case summary | Zoe

NSWNSWDC

SafeWork NSW v Momentum Consulting Group Pty Ltd

[2025] NSWDC 400

District Court of NSW|2025-10-02|Before: Scotting DCJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2025-10-02

Before

Scotting DCJ

Catchwords

CRIME – prosecution – work health and safety – duty of
persons undertaking business – duty of employer –
risk of death or
serious injury – injury to worker WORK HEALTH AND SAFETY

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Catchwords

CRIME – prosecution – work health and safety – duty ofpersons undertaking business – duty of employer –risk of death orserious injury – injury to worker WORK HEALTH AND SAFETY– use of mobile plant - likelihood of risk occurring – whetherdefendant had knowledge of risk- whether risk reasonably foreseeable –workers not given adequate training

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400

Hearing dates: 3, 4, 5, 6, 7, 18 and 19 March 2025; 31 July 2025

Date of orders: 02 October 2025

Decision date: 02 October 2025

Jurisdiction: Criminal

Before: Scotting DCJ

Decision: 1 I find the defendant guilty of the s 33 offence.

Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker
WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training

Cases Cited: Allen v United Carpet Mills Pty Ltd [1989] VR 323
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bergin v Stack (1953) 88 CLR 248
Boucher v G J Coles Co Ltd (1974) 9 SASR 495
Brambles Holdings Ltd v Carey (1976) 15 SASR 270
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998)
He Kaw Teh v R (1985) 157 CLR 523
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Proudman and State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721
Proudman v Dayman (1941) 67 CLR 536
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Inspector Prokopenko attended the scene of the incident shortly after SafeWork was notified of the incident, which was a few days later. Inspector Prokopenko gathered information from employees of Saveba and took some photographs. No issue was taken with Inspector Prokopenko’s credit and I accept his evidence.
Inspector Drury was involved in the subsequent investigation of the incident after 22 April 2021 and issuing the s 155 Notices to the defendant. No issue was taken with Inspector Drury’s credit and I accept his evidence.
Mr Attard began working at the warehouse on 13 May 2021 as a labour hire worker placed by Momentum, before becoming a permanent employee of Saveba on 19 July 2021. Mr Attard presented as a witness who was trying to do his best to tell the truth and to recall the relevant events. I accept his evidence.
Mr Fifita presented as a very genuine witness who was doing his best to give truthful evidence and I accept his evidence.
Mr Krupowicz was a careful and thoughtful witness, even though at times during his evidence he came across as casual. It was evident that the incident, his injury and his consequent disability has deeply affected Mr Krupowicz. I am satisfied that Mr Krupowicz was trying his best to give truthful evidence and I accept his evidence.
Mr Peacock was not assisted by the unavailability of the documents that he signed when he was employed by Momentum. I am satisfied that Mr Peacock gave his best recollection of relevant events and that I should accept his evidence.
Ms Richards was a thoughtful and co-operative witness. I am satisfied that she was trying, to the best of her recollection, to give truthful evidence. Many of the events were hard for Ms Richards to remember in any detail and the documents she prepared at the relevant time were the most reliable source of information concerning her involvement. Ms Richards presented as a competent and capable account manager, who did her best to apply the defendant’s systems within the limits of her training. In cross-examination she was taken to a version of the employee contract in the tender bundle that was marked with highlighting. At the time that she answered questions on the contract, I formed the impression that she emphasised the importance of the highlighted terms because the format of the document drew her attention to those terms. I find that it is more likely that it was her usual practice to ask potential candidates if they had any questions on the terms of the contract, rather than asking specific questions or highlighting the importance of particular terms. Other than that, I accept her evidence.
Ms King was employed by Saveba as the Warehouse Manager from 1 April 2019 to 16 July 2021. Ms King had a limited recollection of the things that she discussed with Ms Richards on 7 and 13 May 2021 and generally. I have exercised some caution in relation to Ms King’s evidence because she left Saveba’s employment before a number of the relevant events took place. She was not replaced at the warehouse for a considerable period and she did not provide a handover to her replacement. It was apparent from the evidence, that some of the practices Ms King gave evidence about, such as assessing workers as competent to use pallet riders, were no longer being observed after, and perhaps before, she left. There was considerable pressure on the ability of the warehouse to cope with the amount of stock it was processing before Ms King left, and it is likely that her focus was distracted from safety issues. For reasons that I will come to I have rejected her evidence that there was a practice of only training workers that Saveba wanted to retain on how to use a pallet rider. Otherwise, I formed the view that Ms King was doing her best to tell the truth and that her evidence should be accepted.
Mr Gillespie joined Saveba on 22 November 2021 as the Warehouse Manager, replacing Ms King. When Mr Gillespie requested labour hire workers from Momentum he dealt with Mr Mburuja. Mr Gillespie presented as a competent manager with a wide range of experience in warehousing. I accept his evidence.
Mr Kaliti was employed by Saveba as a supervisor and a few days before the incident he was given a temporary assignment to supervise about 20 workers on the afternoon shift. He usually worked on the morning shift as the supervisor of the inbound team that consisted of three workers. Mr Kaliti had limited knowledge of the work to be completed on the afternoon shift at the time of the incident. Mr Kaliti presented as a careful witness and a competent supervisor. I accept his evidence.
Up until a few days before the incident Mr O’Toole was employed by Saveba as the afternoon shift supervisor. He was responsible for supervising about 15-20 workers across different teams and the number of workers fluctuated. The majority of the workers on afternoon shift were tasked to undertake quality control. Mr O’Toole was frustrated about the warehouse operating over its capacity in the six months before he left and thought that it was an accident waiting to happen because there was so much stock in the warehouse that there could be no effective traffic management. He complained to management, but nothing changed. Notwithstanding that Mr O’Toole left Saveba because he was not happy in his role, I formed the view that he was a forthright and honest witness. He expressed firm opinions that in my view were justified on the evidence and by reference to his considerable experience in warehousing. I accept his evidence.

The defendant conducted a business providing recruitment and labour hire services in New South Wales, Victoria, Queensland and Western Australia.
Saveba operated a business involving the retail sale of household furniture items under the business name “Coco Republic” in various locations in Australia and operated the warehouse at the site from about 1 April 2019.
Saveba had a few permanent employees at the site but also used labour hire workers sourced from a number of agencies.
The warehouse stored furniture and homewares to facilitate distribution to Saveba’s retail stores, its other warehouses and to customers. The items stored at the warehouse included large and heavy items of furniture, such as lounges and dining tables that could weigh as much as 350kg. Items were stored on full height racks in the warehouse that were accessed with the use of high-reach forklifts. Most items were stored and transported around the warehouse on pallets with the use of forklifts, pallet riders and pallet jacks.
From May 2021 until after the incident Saveba leased from Toyota four Toyota LPE 200 electric pallet riders. The pallet riders had tynes similar to a forklift approximately 3 metres in length that could lift two pallets at a time in a side-by-side configuration at the front. The controls of the pallet rider were at the back of the pallet rider and the operator was separated from the load by an enclosed box, housing the motor. The operator of a pallet rider could ride on a platform at the rear. Alternately, the platform could be folded up and the operator could walk behind the pallet rider. The platform was open and the legs of the operator were not protected in the event of a collision, as was demonstrated by the incident. Operators usually drove the pallet riders with the load trailing behind them. This involved the operator standing side-on to the controls and facing the direction of travel. Workers did not require a high-risk work licence (HRWL) to operate a pallet rider.
Some items arrived at the warehouse in shipping containers that were unpacked on the hardstand area. On occasions, shipping containers were also re-packed in that area for transport to other locations.
The warehouse was staffed by two shifts. The morning shift operated from 6.00am to 2.00pm and the afternoon shift operated from 2.00pm to 10.00pm. During the morning shift, the workers would focus on picking the stock required to fill orders and on the afternoon shift the workers would undertake quality control and get the stock ready for distribution the next morning.
There were about 15-25 workers who worked the afternoon shift, most of whom were labour hire workers.
Workers on the afternoon shift undertook a variety of work, but the majority of the work involved quality control. These workers were referred to on the warehouse floor as QC workers or the QC team.

Each item of furniture supplied from the warehouse was checked for damage and fully assembled before being sent out. Only about 25% of the items supplied by Saveba required some degree of assembly at the warehouse.
Items required to fill an order were picked from the racks at the warehouse or from an incoming delivery and taken to the Pre-QC Staging Area where they were stored on pallets in rows until they were assembled and/or checked.
QC workers worked in an area referred to as the QC Carpet. The QC Carpet was an open area of the warehouse with carpet on the floor to prevent the items being scratched or damaged when they were unpacked, assembled and re-packed in that area.
The quality control process involved unpacking items, inspecting them for damage, assembling the items with hand tools (if required), repackaging items for protection during transport and putting items in the appropriate staging area for delivery. If a worker identified that an item was damaged, the worker would take it to the workshop for assessment and, if possible, repair.
QC workers were supervised by Mr O’Toole from 13 May 2021 to early February 2022 when he left Saveba. In that role, Mr O’Toole was responsible for allocating tasks, providing training and instruction and supervising the workers.
Ms Richards, in her role as Senior Account Manager for Momentum, contacted Mr O’Toole directly to enquire how the labour hire workers were going from time to time, and to see if he required additional workers.
In January 2022, Mr Kaliti was the outbound team leader responsible for getting cargo on pallets ready to be transported interstate. His role involved supervising three workers on the morning shift. In about early February 2022, when Mr O’Toole left Saveba, Mr Kaliti was given the temporary assignment to supervise all of the workers on the afternoon shift, which was intended to last for two weeks. In this role, Mr Kaliti was responsible for supervising close to 20 workers, including the QC team, the inbound team and the picking team. The workers on the afternoon shift were a mixture of permanent Saveba employees and labour hire workers. Mr Kaliti was in charge of the work on the day of the incident.

I am satisfied that the Terms were signed on behalf of Saveba knowing that the document was intended to affect the legal relations between Momentum and Saveba and that it contained contractual terms, such that Saveba intended to be bound by those terms: Toll *(*FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. However, the relevant question is whether or not the terms relied by Momentum imposed any relevant obligation on Saveba.
The task of ascertaining the legal meaning of provisions in a commercial contract involves identifying the imputed intention of the parties by reference to the contractual text construed in light of its context and purpose: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51].
A court will take an objective approach to interpreting the contract. In a commercial agreement, the question is what a reasonable businessperson would have understood the terms to mean, taking into account the language used, the surrounding circumstances known to the parties, and the commercial purpose of the objects to be secured. The last requirement is facilitated by understanding the genesis of the transaction, the background, the context and the market the parties are operating in. Unless the contrary is indicated, the court is entitled to approach interpretation on the basis that the parties intended to produce a commercial result. A commercial contract should be construed to avoid it making a commercial nonsense or working a commercial inconvenience Woodside Energy at [35].
Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. However, such evidence is not admissible to contradict the language of the contract when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 (Mason J, Stephen and Wilson JJ agreeing).
The recitation of the obligations placed on the labour hire workers in their agreements with Momentum set out in the first three bullet points, did not impose any obligation on Saveba. At best they provide contextual information to the effect that Momentum represented that it had secured promises from the labour hire employees to act in the ways set out.
It should also be noted that the alleged terms set out in the first three bullet points do not appear in the words set out in the Casual Worker On-hire Employment Contract (Employment Contract) or Momentum’s Important Policies signed by the relevant workers in this case. In other words, the express promises secured by Momentum from the workers are not those set out in the Terms, but in the relevant documents the workers agreed to similar obligations. I note that the Employment Contract and Important Policy documents were, according to the footer printed on them, the 2020 version of those documents. I infer that the terms of the Employment Contract and the Important Policy documents were altered after the Terms were signed by Saveba in 2014.
The fourth bullet point is in two parts. The first part imposes an obligation on Saveba to co-operate with Momentum by allowing the labour hire workers to comply with the obligations imposed on them by the first three bullet points. The second part states that Saveba has obligations under the Act and that Momentum relies on Saveba to manage risks to the health and safety of the labour hire workers. Read together, it is arguable that the clause sets out the statutory obligations of Saveba to provide safety instructions, training on the use of machinery and the right to refuse to operate faulty machinery and that the fourth bullet point incorporates those matters into the Terms as contractual obligations imposed on Saveba. Having said that, the clause is broad and to a large extent uncertain. It must also be noted that the effect of such a clause cannot be to allow Momentum to contract out of its statutory obligations: ss 16(3) and 272 of the Act. For the purposes of deciding the case, I will assume the defendant’s case at its highest, that the effect of the clause in the fourth bullet point relevantly imposes contractual obligations on Saveba to provide safety instructions on work tasks and to provide adequate training on the use of machinery.
The fifth bullet point imposes an obligation on Saveba to ensure that any safety instructions given to a labour hire worker are given in a language that the worker can understand. This clause is not relevant to the determination of the case.

Ms Richards gave evidence that she was taken through the warehouse by Ms King, walking from the staff area on the mezzanine level along the pedestrian walkway in an anticlockwise direction, ending up at the hardstand and stopping at points of significance along the way. Ms Richards made entries on the SIR during the course of the inspection and at the conclusion of the inspection Ms King signed the SIR as a record of the inspection.
Ms Richards noted on the SIR that Momentum was being asked to provide labour hire workers for a “furniture assembly” role. Ms Richards noted that a written job description for the role was not available and that Saveba only had written position descriptions for the positions of team leader and above. Ms Richards could not recall the content of any conversations during the WHS site inspection about the nature of the duties to be undertaken by a “furniture assembler” at the warehouse.
The SIR prompted the Momentum employee filling it in to sight a client’s WHS documents and to take note of the information in them, if necessary. If a relevant document could not be produced or was not available, the SIR prompted the Momentum employee to discuss that issue with their manager. This was consistent with the content of the Manual.
Ms Richards gave evidence that when she sighted relevant documents that she would look at the headings in each document to ascertain the topics covered by them but did not read them word for word. Ms Richards lacked both training and experience in the analysis of these documents such as the Traffic Management Plan (TMP) or the Traffic Management Procedure and she understood her role was to check that safety documents existed and that they appeared to be bona fide.
The SIR noted that Ms Richards sighted Saveba’s Safe Work Method Statements (SWMS), Safe Operating Procedures (SOP) and Safety Rules, during the course of her inspection, but it did not identify which ones.
Ms Richards noted the major WHS risks at the warehouse to be manual handling, forklift traffic, power tools and MHE (material handling equipment).
Ms Richards gave evidence that at the time of filling in the SIR that she understood that Saveba used forklifts and pallet jacks as material handling equipment. Ms Richards could not recall any discussion during the WHS site inspection about the use of pallet riders. Ms Richards gave evidence that she did not know what a pallet rider was and did not recall seeing pallet riders in use when she had been at the warehouse.
Ms Richards gave evidence that she did not recall asking how pallets were moved around the warehouse on pallets during the WHS site inspection. She recalled seeing a large marble dining table during the WHS site inspection, but she did not turn her mind as to how large or heavy items were transported around the warehouse. Ms Richards also gave evidence that she did not consider any tasks that might arise incidentally while workers perform their duties.
Ms Richards noted that the main topics covered at Saveba’s induction sessions to be:

Ms Richards could not recall any discussion during the WHS site inspection about the type of work that was undertaken in the QC Carpet area.
Ms Richards gave incorrect evidence that the furniture assembly workers placed by Momentum at the warehouse would be working in the workshop area of the warehouse, which she also misidentified from a photograph that was shown to her. It is likely that Ms Richards assumed that furniture assembly would be undertaken in the workshop and that she misidentified the location of the workshop because the photograph depicted a person working at what appeared to be a work bench. Whatever the reason for these two errors in her evidence, I am satisfied that they indicated that she did not have a good understanding from the WHS site inspection of how or where the work to be performed by the Momentum workers would be undertaken in the warehouse.
Ms Richards did not have a good recollection of the matters discussed with Ms King during the WHS site inspection. She gave evidence by reference to her usual practice, but it must be noted that this was only the second time that Ms Richards was required by Momentum to complete a SIR. Ms Richards appropriately conceded that the best evidence of what was discussed during the WHS site inspection, and at other times, was contained in the SIR and the notes entered in the CRM system.
Similarly, Ms King did not have a good recollection of the matters discussed during the WHS site inspection. She signed the SIR to confirm that Ms Richards had conducted the inspection. Ms King believed that she would have discussed pallet riders with Ms Richards if she was asked what MHE was used in the warehouse and would also have probably spoken about the platforms on pallet riders and their associated risks with pedestrians, when they were discussing the machinery onsite but I am not satisfied on the evidence that these topics were discussed during the WHS site inspection.
Ms King gave evidence that she had at some point discussed the use of pallet riders at the warehouse with Momentum, because it was Saveba’s practice or preference to only train labour hire workers to operate machinery, such as a pallet rider, if Saveba considered the worker to be a good worker and suitable for permanent employment with Saveba. The rationale behind this was that Saveba did not want to spend time training labour hire workers to use machinery, who Saveba did not want to retain, or could be placed with other host employers by Momentum. Ms King’s evidence was that when discussing particular labour hire workers with Momentum, she would for example mention that the worker was being trained to use a pallet rider, to indicate that Saveba was interested in retaining the worker as a direct employee of Saveba. It was the usual practice of Saveba to wait until the worker had been placed by Momentum at the warehouse for 12 months, so that Saveba could appoint the worker as a permanent employee without incurring the placement fee.
Ms King could not recall any specific conversations with Momentum representatives on this topic, but she believed that she had sent emails to this effect. No such emails were in evidence. Whilst I accept that Ms King’s evidence reflected her preference as a senior manager at Saveba relating to the training of labour hire workers, I am not satisfied that this preference or practice was in place or communicated to Momentum for four reasons. First, I would have expected this type of communication with Momentum to have been documented, at least in an email and there was no evidence of this. Second, the evidence of the workers at the warehouse, including the supervisors employed by Saveba, did not support the existence of Ms King’s preference or a practice by Saveba. For the reasons I will come to, the true position was that any of the labour hire workers could use a pallet rider to perform their duties, if they asked to do so and after they were provided with inadequate and uncontrolled training on how to use a pallet rider. Third, Ms King gave evidence that there was no prohibition in place at the warehouse to prevent a labour hire worker using a pallet rider and in my opinion this cuts against Ms King’s assertion that only certain people were to be trained. Fourth, many of the relevant events occurred after Ms King left Saveba and the views expressed in her evidence were probably not current at the time of the incident.
Finally, the WHS site inspection as described by Ms Richards would have taken her past the MHE Charge Bay, where the pallet riders were charged, if they were not in use. Ms Richards gave evidence that she could not recall seeing a pallet rider at the MHE Charge Bay or in use on 7 May 2021 or 13 May 2021. Her evidence was that as at 13 May 2021, she did not know what a pallet rider was. She did not become aware of what a pallet rider was or that they were being used at the warehouse until after she was advised of the incident involving Mr Krupowicz.

Mr Attard started work at the warehouse on 13 May 2021 as a labour hire worker placed by Momentum. Mr Attard’s first day of work at the warehouse occurred on the day that Ms Richards completed her WHS site inspection. She met Mr Attard at the warehouse to introduce him.
On 19 July 2021 he became a direct employee of Saveba.
Mr Attard contacted Momentum after seeing an advertisement on an employment app. He attended Momentum’s office at Parramatta for an interview with Ms Richards. He was shown an induction video entitled “Understanding Safety at Work” and answered a number of questions on it to demonstrate that he understood the content of it. He also signed a number of documents at the interview, including an Employment Contract and Momentum’s Policies referred to at [88] below.
The Understanding Safety at Work video was a professionally produced presentation that depicted a number of accidents at workplaces. It covered topics including risk assessment, housekeeping, slips, trips and falls, hazardous substances, electrical hazards and work equipment safety. In the last chapter, the equipment referred to included a reference mobile transport equipment including forklifts. It warned of a risk of death from a collision between a pedestrian and a forklift and advised workers to stay in marked pedestrian areas to avoid the risk of a collision. On the issue of manual handling, the video advised not to take unnecessary risks and to always use suitable mechanical handling aids and depicted the use of a trolley and a pallet jack.
During the course of the interview, Mr Attard recalled being told that he was better suited for a placement at the warehouse, rather than on a fast-paced production line at an air-conditioning factory. He was told Saveba was a furniture company, but the role was not really described to him in much detail. He did not recall any discussion on the risks present at the warehouse or any training that he could expect to receive. He was not given a written position description. He did not recall being given any instruction on what to do if his duties at the warehouse changed or if he was asked to operate machinery. Mr Attard did not accept the proposition put to him in cross-examination that when he went to Saveba that he performed the work that he was told he would be doing in the interview. He was not told that he would be required to use a pallet rider.
Mr Attard gave evidence that he was given an induction on the mezzanine level of the warehouse by Ms King and that he did not recall Ms Richards being present, but she may have been. After the induction, Ms King took him onto the warehouse floor and introduced him to Mr O’Toole.

The FlareSign records corroborate Mr Krupowicz’s evidence that he signed the Employment Contract and the Important Policies without reading them. Further, I am satisfied that the FlareSign records were available to Momentum at the time, and that Momentum should have known that the way in which it sought to provide the safety information to Mr Krupowicz in those documents was inadequate and ineffective.
On 15 September 2021 Mr Krupowicz participated in a video interview with Ms Richards on WhatsApp due to the COVID-19 restrictions in place at that time.
Mr Krupowicz could not recall there being any discussion in the interview about the Employment Contract or any of its clauses. He did not receive any document outlining his duties as a labour hire worker at the warehouse and he was not told what the exact duties were. He had a general understanding that he was to check furniture to make sure it was not damaged, to wrap it up and put it to the side. He was not told what to do if he thought a task was unsafe or if he was asked to operate equipment that he was not qualified to use. There was no discussion about receiving training before being asked to operate equipment. He was not told anything about the use of MHE or pallet riders, or how items of furniture were moved around in the warehouse. He was not told about any risks at the warehouse or what safety training he could expect to receive. Mr Krupowicz did not understand that he was required to tell Momentum if his duties changed. In cross-examination, Mr Krupowicz agreed that Ms Richards told him in the WhatsApp interview that the role involved assembling furniture using hand tools, manual handling up to 20kgs, the shift times and that he was required to wear a high visibility vest and steel capped boots. Counsel for Momentum suggested that Ms Richards told Mr Krupowicz about a number of tasks that he would be required to undertake in his role at the warehouse. To the extent that Mr Krupowicz agreed with those propositions:

Mr Fifita was referred to Momentum by a relative who had been placed to work at the warehouse. He filled out some forms online before having a conversation with Ms Richards. Mr Fifita electronically signed the same forms completed by Mr Krupowicz, also using FlareSign. Mr Fifita accepted that by reference to the time stamps on the documents applied by FlareSign that he did not read them carefully, or at all, before signing them. He did not recall anyone from Momentum explaining any of the documents to him before he signed them.
Mr Fifita had a Zoom call with Ms Richards on 13 October 2021. He could not recall the conversation that occurred in the interview. He did not recall there being any discussion about what he was required to do if he was directed by Saveba to undertake different work. Mr Fifita understood that the job at the warehouse was “warehouse labouring work” involving “Just lifting…lifting boxes”. He was not told anything about training, pallet riders or TMPs or traffic management procedures. He did not recall receiving a written position description from either Momentum or Saveba.
In cross-examination Mr Fifita could not recall if Ms Richards used the term “quality checker” but stated that it what he and the other workers were referred to as at the warehouse. He did not recall if Ms Richards told him anything about the nature of the work he would be doing at the warehouse. Mr Fifita did not receive any form of induction from Momentum relating to the work at the warehouse.
Mr Fifita received an email from Momentum in similar terms to the email sent to Mr Krupowicz advising him that he had been successful in securing employment and when to report to the warehouse.
On his first day at the warehouse, Mr Fifita was given an induction by Mr O’Toole. Mr Fifita agreed that he was not told anything about using a pallet rider. He was told to walk on marked pedestrian lanes in the warehouse, and that he could not walk in the “Warehouse A” area because that was only for forklifts.

Mr Attard gave evidence that his work at the warehouse involved quality control, which required him to assemble and disassemble furniture, packing furniture and staging it in different areas depending on where it was to be delivered. At first, he did not use a pallet rider. Of the other eight to 10 QC workers, some of them used pallet riders to move empty pallets, rubbish or to move a heavy item closer to the QC Carpet. Mr Attard’s evidence was that he was not told that he could not use a pallet rider. After he got an understanding of how the warehouse operated Mr Attard started using a pallet rider. He was shown by a co-worker, not a supervisor, how to operate a pallet rider, but he could not remember who showed him. He was not given any instructions relating to traffic management rules in the warehouse. Mr Attard gave evidence that pallet riders were used as a means of transport by the workers on the QC Carpet, including to make trips to the bathroom.
Mr Attard gave evidence that pallet riders were used in some areas of the warehouse where the access was too tight to use a forklift. Mr Attard was not told that there were any “no-go” areas for pallet riders in the warehouse.
Mr Peacock commenced work at the warehouse in about August 2021, as a worker on the QC Carpet. About a month or two after he started work, he began to use a pallet rider to “move stuff around”. Mr Peacock was shown how to operate a pallet rider by his brother-in-law who was also a QC worker and was not a supervisor. He was not given any instructions relating to traffic management rules in the warehouse. Pallet riders were used to bring items to the QC Carpet by Mr Peacock and other QC workers when forklift drivers were too busy to do so. Mr Peacock also used a pallet rider to move pallets from outside the warehouse on the hardstand area. No one at Saveba told Mr Peacock that he could not use a pallet rider or that there were “no-go” areas for pallet riders. Mr Peacock gave evidence that there were some heavy items of furniture that could not be moved other than with a forklift or pallet rider. After he began to use a pallet rider, Mr O’Toole asked him to use one a couple of times to undertake tasks. Mr Peacock did not understand that he was obliged to tell ProQuest or Momentum that he was using a pallet rider at the warehouse.
Mr Krupowicz gave evidence that when he commenced work that he observed that pallet riders were used frequently to move items around the warehouse. He saw them used in all parts of the warehouse and was not instructed that there were “no-go” areas for pallet riders. QC Workers used the pallet riders multiple times a day for a wide variety of reasons, including taking damaged items to the workshop, the movement of large and/or heavy items, retrieving large rolls of bubble-wrap from the store, transporting items to the QC Carpet, and even going to the bathroom. Mr Krupowicz did not use a pallet jack during his time at the warehouse because the two that were available were constantly out of service.
Mr Krupowicz did not use a pallet rider for the first two to three weeks he was employed at the warehouse. He was initially reluctant to do so because he did not have a driver’s licence and felt “a bit nervous”. No-one from Saveba or Momentum told him that he could not use a pallet rider or that he needed to receive specific training before he did so. Mr Krupowicz observed a number of the workers on the QC Carpet used pallet riders in the course of their work.
Mr Krupowicz asked Mr Peacock to show him how to operate a pallet rider and after that he started using them. The instructions given by Mr Peacock related to the basic operation of the pallet rider and were very brief. No supervisor from Saveba was involved in this training. Mr Krupowicz was not given any instruction on the Traffic Management Plan (TMP) or the Traffic Management Procedure at the warehouse or provided with any basic traffic rules, such as to keep left when operating a pallet rider in the warehouse. After he felt comfortable in using a pallet rider, Mr O’Toole began to ask Mr Krupowicz to perform tasks using a pallet rider.
Mr Fifita gave evidence that when he commenced work at the warehouse he undertook quality control work on the QC Carpet. Initially he did not use a pallet rider but began to do so after a week or two at the warehouse after being encouraged to do so by other workers. To Mr Fifita’s observation only about four or five out of 10 of the afternoon shift workers used a pallet rider. Mr Fifita worked out how to use a pallet rider for himself and was not given any instructions by a supervisor. He was not assessed as competent to use a pallet rider by a supervisor. After he started using a pallet rider, he used one every day, several times a day to move pallets around the warehouse. In cross-examination, Mr Fifita said that he started to use a pallet rider because there were times when he was “standing around waiting for pallets to be moved when the pallet rider was there”. After a few weeks, Mr Fifita was asked by a forklift driver to help him in the hardstand area and thereafter he regularly worked in that area using a pallet rider. He did not believe he was under an obligation to tell Momentum about this change in his duties.
Ms King gave evidence that pallet riders were used to move items from the warehouse to the pre-QC staging area. During her employment with Saveba there was an operator dedicated to this task and if the operator was unavailable, workers who knew how to operate pallet riders assisted including the QC workers.
Mr O’Toole’s evidence was that the QC workers were required to use pallet riders regularly to move items around the warehouse and that they were required to do so. Pallets were arranged in rows in the QC staging area and one task of the QC workers was to move the pallets forward in the rows using a pallet rider as items on the pallets at the front of the row were removed to be assembled, checked and put into the required staging area for delivery. Pallet riders were also used to remove pallets from the rows in the QC staging area, if the items on them were required immediately. Usually, pallets were put in the QC staging areas by forklifts, but there were occasions when QC workers were required to retrieve items on pallets from different areas of the warehouse and bring them to the QC staging area. Once in the QC staging area, items were taken to the carpet by hand or on dollies. Large or heavy items that needed to be taken to the workshop were usually put on a pallet and transported using a pallet rider. There was a considerable amount of heavy and large furniture items that had to be moved around using a pallet rider.
Mr O’Toole gave evidence that the warehouse was constantly operating over its capacity. As a result, loaded pallets that were received during the morning shift were put in places that blocked the aisles and doors of the warehouse and were left outside on the hardstand area at the end of the morning shift. These pallets had to be moved by using pallet riders to gain access to different areas of the warehouse and to store all stock inside the warehouse before it closed for the night for security reasons. The blocking of aisles and exits with loaded pallets of excess stock required a lot of ad hoc movements to be conducted each day. All workers on the afternoon shift, including the QC workers, were required to undertake this work when it needed to be done, which was every day in the six months before the incident.
Mr O’Toole gave evidence that the QC workers were shown by somebody how to operate a pallet rider, that they were not required to be assessed as competent by him or anyone else at Saveba and that there was no training manual relating to pallet riders. QC workers were shown how to operate a pallet rider when it was required and there was no system in place to decide who would be trained. Mr O’Toole did not train any of the workers to use a pallet rider and he did not consider himself adequately trained to do so.
Mr O’Toole gave evidence that it was good warehouse practice to train workers to manually handle items as little as possible and to use the available MHE to prevent injuries.
Mr O’Toole gave a daily toolbox talk which included reading out a safety topic, of which there were about 10 different topics. The safety topic for the morning shift was also used for the afternoon shift. Mr O’Toole was familiar with the TMP but had never seen a copy of the Traffic Management Procedure.
Mr O’Toole from his experience in warehousing and at Saveba, considered the QC workers to be “warehouse workers” and that he could and would direct them to do whatever task needed to be done, except a task that they were not qualified for such as driving a forklift without a licence. Mr O’Toole’s evidence was that the task of a QC worker included housekeeping and in a warehouse that involved moving pallets when required to do so and with a pallet rider if that was necessary.
About a month or two before the incident on 9 February 2022, the afternoon shift picked up the responsibility for loading shipping containers in the hardstand area with items to be shipped the next morning. This was work that the “outbound crew” on the morning shift were unable to complete within their shift. The shipping containers were loaded with items on pallets with the use of pallet riders by two or three of the workers from the QC Carpet including Mr Peacock, Mr Attard, Mr Krupowicz and Mr Fifita.
Mr Kaliti gave evidence that as a supervisor of the afternoon shift that he would ask workers to perform different roles depending on the work that needed to be done. For example, if there were a lot of trucks coming in, he would ask QC workers to assist the inbound team to unload the trucks. About once a week, he asked QC workers to assist with loading containers in the hardstand areas when he needed additional labour.
Mr Kaliti’s evidence was that pallet riders were used regularly to move pallets around the warehouse and to bring loaded pallets out of racks to the QC staging area after they had been placed on the ground by a high-reach forklift. From the QC staging area, items were usually moved by hand, or on trolleys or dollies. After items were assembled and/or checked they would be moved to the relevant delivery staging area by hand, or on trolleys or dollies. Pallet riders could not be used close to the QC Carpet because they would get stuck or damage the carpet. Items were sometimes moved to the interstate or New Zealand staging areas and to the workshop using pallet riders
To Mr Kaliti’s observation, about two or three of the QC workers out of 10 or 12 in total, used pallet riders on the afternoon shift. Mr Kaliti’s understanding was that workers should be assessed as competent by a supervisor to use a pallet rider, before being allowed to do so, and he undertook that process with workers he supervised on the morning shift. When he came to supervise the afternoon shift, he assumed that the workers using pallet riders had been assessed as competent to do so by their supervisor, Mr O’Toole.
After the incident, Mr Attard and Mr Fifita were required to undertake training on the use of a pallet rider and they were then certified as competent to use a pallet rider by a safety employee of Saveba. Mr Kaliti’s evidence was that the process is now carried out by a WHS trainer who administers a written assessment, certifies the worker as competent, the process is documented and the documents are retained by Saveba.
Mr Gillespie gave evidence that there were only two types of labour hire workers sought from Momentum: forklift drivers and storemen or QC workers. Mr Gillespie’s evidence was that storemen could be asked to perform a number of different roles at the warehouse which all involved the movement of stock items on pallets around the warehouse, workshop and QC staging area and generally that involved the use of a pallet rider. Mr Gillespie expected the storemen to perform whatever task was required of them in any area and he observed them to do so at the warehouse. This “cross-functionality” coincided with his experience in warehousing both before and after his employment with Saveba.
When Mr Gillespie first started at the warehouse he asked his boss, Mr Kennedy about the pallet riders, because he had never seen one before. He was told that the workers did not require a HRWL to operate a pallet rider. Mr Gillespie understood that there was some informal training provided to workers about how to use a pallet rider, but no formal assessment of competency. After the incident, changes to the system were introduced as to training and assessment of workers before they could operate a pallet rider. When Mr Gillespie started work the TMP was displayed on a noticeboard, but it was not provided to workers in their induction. After the incident, Saveba introduced the Traffic Management Procedure and a Standard Operating Procedure for a Pallet Rider (SOP). After the incident, Mr Gillespie could not locate any induction documents relating to Mr Krupowicz.

On 19 January 2022 Mr Mburuja recorded a note in the CRM that Mr Krupowicz had telephoned him because he was missing a day’s pay. The call extended for 2 minutes and 28 seconds and Mr Mburuja gave evidence that it was possibly limited to the issues in relation to pay. He had no recollection of other issues being discussed and his note was also confined to a consideration of the pay issue.
On 23 January 2022 Mr Mburuja exchanged a series of text messages with Mr Krupowicz about a change of shift, that are not relevant to the issues in the case.
Mr Attard’s evidence was that when he was working for Momentum at the warehouse that he was called a few times and asked if he was happy at the warehouse and how everything was going. In particular, he recalled a brief call he received from Momentum after a couple of days or a week after he commenced work. In total he received about four or five calls from Momentum asking if he was having any problems at the warehouse. Mr Attard did not recall ever being asked about anything specific to his duties at the warehouse, anything about the use of machinery, his training or safety.
On 3 November 2021 and 21 January 2022 phone records show that five calls were placed from the mobile telephone used by Ms Richards and Mr Mburuja to Mr Fifita lasting 51 seconds, 2 seconds, 3 seconds, 3 seconds and 3 minutes 54 seconds, respectively.
Mr Fifita’s evidence was that he received a telephone call from Momentum a few days after he started that was “pretty brief – maybe 5-10 minutes”. He spoke to employees from Momentum a further four or five times during his placement at the warehouse. In the course of those conversations, he did not recall being asked about his duties, training or supervision.
Mr Peacock contacted Momentum from time to time when he was sick and when another worker with COVID turned up for work. He spoke to Ms Richards on occasions. He could not recall her asking him about his duties, risks at the warehouse, supervision or training. He did not receive any visits from Momentum at the warehouse.
Mr Mburuja’s evidence was that he had a service delivery team working with him to contact the labour hire workers. He would usually telephone labour hire workers if there was a problem escalated to him, such as non-attendance at work or he would see them and talk to them on site.
There were no CRM records produced that would support that Momentum made enquiries of the labour hire workers about the nature of their work or safety related issues.

On 9 November 2021 Ms Richards resigned and did not complete that site visit.
After Mr Mburuja replaced Ms Richards, he attended the warehouse on 21 December 2021 and met with Stewart Kennedy and Mr O'Toole. Mr O'Toole could not recall the content of that meeting. Mr Mburuja gave evidence that he met Mr Kennedy and Mr O'Toole in the mezzanine office at the warehouse and discussed "what day-to-day looks like, any service issues, any problems with the guys, anything major they'd want us to kind of tackle as soon as possible". Mr Mburuja stated there were no issues raised by Mr Kennedy or Mr O'Toole at that time. Mr Mburuja's evidence was that he could not visit the labour hire workers on the floor of the warehouse because they were behind and trying to catch up. Mr Mburuja had no recollection of asking Mr Kennedy or Mr O’Toole whether the labour hire workers used any machinery as part of their role. Mr Mburuja gave evidence that he wanted to conduct a further WHS inspection at the warehouse, but it was not clear if he had wanted to do that on 21 December 2021. His email calendar invite arranging the meeting did not refer to that as a purpose of the visit and only allowed 15 minutes for the meeting. Mr Mburuja recorded in the CRM system that Mr O'Toole told him that he had sufficient assemblers but was looking for one or two high-reach forklift drivers for the afternoon shift and that Saveba would be working through and only closing for public holidays over Christmas.
Mr Gillespie had contact with Mr Mburuja after he commenced work at the warehouse. He could not recall any conversation with Mr Mburuja about what work the labour hire workers were doing at the warehouse or their training or supervision. Mr Gillespie recalled meeting with Mr Mburuja at the warehouse and walking around with him for about 10 minutes on one occasion. Mr Gillespie observed Mr Mburuja speak to one or two of the Momentum labour hire workers on that occasion. Mr Gillespie gave evidence that it is possible that this visit occurred after the incident, which fits in with when Mr Mburuja started, his induction program and the leave he took over Christmas and into January 2022. Accordingly, I have not afforded this evidence much weight.
Ms King’s evidence was that in the period between May 2021 and her departure in July 2021, she received some general check-in calls from Momentum in relation to the workers. She did not recall being asked about the duties, training or supervision of the workers.
Similarly, Mr O’Toole and Mr Gillespie gave evidence that Momentum never asked for specifics in relation to the workers’ duties. In particular, Momentum never asked to provide a position description or a written list of duties. They both gave evidence that Momentum did not ask whether the workers were required to operate any machinery including pallet riders, whether their duties had changed, or about potential risks, training, induction and supervision at the warehouse.

When Mr Kaliti took over supervising the afternoon shift, he was responsible for conducting daily toolbox talks. These included reading a safety topic from a document that he would be given from the morning shift. The safety topics covered a number of issues including safety around forklifts, safe use of knives, safety of pedestrians and how to use a ladder. The safety topic changed each day.
On the afternoon shift on 9 February 2022 Mr Attard, Mr Krupowicz and Mr Fifita were loading shipping containers in the hardstand area of the warehouse. Mr Attard was scanning items that were being packed into the containers and Mr Krupowicz and Mr Fifita were using pallet riders to bring items on pallets from inside the warehouse to the containers that were to be manually loaded into the containers.
Mr Kaliti had supervised Mr Fifita doing similar work for the inbound team in the past. The work involved using a pallet rider to bring the stock from inside the warehouse out to the hardstand where the containers were located. The pallet riders were better suited for the job than a forklift because the pallet riders could transport two pallets at a time making the work more efficient. Mr Kaliti did not know if Mr Krupowicz and Mr Attard had used a pallet rider before. He asked Mr Krupowicz and Mr Attard if they had done the work before and they told him that they had. He assumed that they had been assessed as competent to do so by a supervisor in the past.
The incident was captured on high quality video footage. Mr Krupowicz and Mr Fifita were operating pallet riders in the hardstand area of the warehouse. Both workers were driving toward each other in reverse on the pallet riders and then they swerved the pallet riders in the same direction toward each other, causing the platforms of the pallet riders that they were standing on to come into contact with each other. They had not been trained on any traffic management rules such as to keep left when operating a pallet rider.

Having regard to all of the evidence, I make the following findings:
None of the labour hire workers were provided with a description of their expected duties at the warehouse that was specific enough for them to understand if their duties were being changed. Saveba did not provide a written position description to Momentum for the “furniture assemblers”. Whilst Saveba had a job description for “Warehouse Store Person (Furniture Assembling and Staging)” in its electronic system, the supervisors of Saveba who gave evidence were not aware of it. Ms King told Ms Richards that no written position description existed. The labour hire workers gave evidence that they “did not recall” receiving a written position description, which is usually an equivocal statement. However, in this instance I am satisfied that the workers did not receive a written position description from Momentum because it had not received one from Saveba.
None of the labour hire workers understood that when they were working at the warehouse that they were under a contractual obligation to notify Momentum if their duties changed. This was because of the way in which the contractual obligations in the Employment Contract and the Policy Documents were presented to them. Each of the labour hire workers was a young person eager to secure the job being offered by Momentum. They signed the documents presented by Momentum as a necessary part of doing so. The FlareSign evidence demonstrated that Mr Krupowicz and Mr Fifita did not read the documents carefully before signing them, or perhaps even not at all. Momentum had the FlareSign documents available to it and should have known that they did not read the Employment Contract and Policy Documents carefully. I find that the usual practice of Ms Richards was to ask potential candidates if they had any questions about the documents and it was not to explain any particular terms or highlight specific clauses.
At the warehouse, items were routinely placed on wooden pallets to be moved around the warehouse. The use of pallets was intended to facilitate the lifting of items on pallets by the use of MHE at the warehouse, being forklifts, pallet riders and pallet jacks. It was not practical to lift items on wooden pallets or items in excess of 40kg by hand. It is likely that unladen wooden pallets weighed more than 20kg. I am satisfied that the QC workers were regularly required to use pallet riders when performing their duties. Their use of pallet riders was readily foreseeable given their employment was in a warehouse environment where cross-functionality was the norm and the labour hire workers were expected to help with tasks outside their usual duties when needed.
Neither Mr Krupowicz nor Mr Fifita were provided with relevant training before commencing with Saveba nor during the period between their start dates and the incident. Each of the labour hire workers were given some inadequate training on the use of a pallet rider at the warehouse, but none of them knew, or ought to have known that the training was inadequate. The clauses of the Employment Contract in relation to the use of equipment and machinery at the site, described in [88], provided no guidance on what level of training would be adequate for a Momentum worker to operate machinery such as the pallet riders. Notably, the Employment Contract explicitly contemplated the possibility that workers might be required to use machinery and does not seek to prevent them doing so.
Momentum did not have a standard set of questions to ask the labour hire workers about their work in the regular follow-up contact calls. The calls were brief and very high level, intended to serve Momentum’s commercial interests, particularly ensuring that the workers were turning up for work with a focus on the workers’ general satisfaction and their intention to continue to make themselves available on the placement. There was no meaningful consideration of the workers’ duties, training, supervision or potential risks at the warehouse.
Momentum did not direct its employees making the calls to ask the labour hire workers anything about their duties or if they had changed, if they involved operation of machinery or new machinery, what training they had received, what supervision was being provided to them or anything significant about safety at the warehouse such as any risks they might be encountering.
Momentum did not have a standard list of questions for Saveba during its follow-up calls to Saveba to ascertain what work the labour hire workers were being asked to perform or how they were trained to conduct the work. Momentum’s calls were limited to ensuring that Saveba was satisfied with the performance of the labour hire workers.
The evidence makes it clear that the labour hire workers were routinely required to use pallet riders and in fact used them on a regular basis. They did so with the knowledge of those supervising them and often in response to requests that could not be completed without using a pallet rider. While Momentum asserted that it was not aware the workers were required to, and were in fact, using pallet riders, it was a consequence of a manifest failure on the part of Momentum to make proper inquires with the workers and Saveba about the duties the workers would be expected to undertake. Further, the workers could not reasonably be expected to avoid deviating from the scope of their duties, when that scope had not been clearly described to them.

The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke *(*BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi *(*Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
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The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather, should it have: WorkCover Authority of New South Wales v Kellogg *(*Aust) Pty Ltd [1999] NSWIRComm 453.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties, then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers, but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].
Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services *(*Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.
Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.
Section 244 of the Act provides:

The defendant knew that there were risks posed to the labour hire workers by the use of MHE at the warehouse. Ms Richards knew from the goods she saw at the warehouse that the labour hire workers would be required to use MHE, if they were limited to lifting no more than 20kg.
Ms Richards believed that forklifts and pallet jacks were the MHE in use at the warehouse and did not know what a pallet rider was, until after the incident.
I accept that Ms Richards was probably not told by Ms King about the use of pallet riders at the warehouse on 7 May 2021 or 13 May 2021 because if she was, Ms Richards would have had to ask what they were.
The defendant ought to have known that pallet riders were in use at the warehouse and presented a risk to the health and safety of the labour hire workers for the reasons that follow.
First, I am satisfied that pallet riders were in use at the warehouse when Ms Richards attended. The evidence was that the pallet riders were used frequently in daily operations at the warehouse. I accept Ms King’s evidence that they were in use at the warehouse on a daily basis in May 2021. Ms Richards had not been trained by the defendant on the kinds of MHE that could be used in a warehouse and she did not know what she was looking for. Further, it is likely that pallet riders would have been on charge in the MHE charge bay that Ms Richards had to walk past on 13 May 2021 when completing the SIR.
Second, Ms Richards had not been adequately trained on how to perform a WHS site inspection. From her evidence, she had not been trained in accordance with the processes in the Manual, been supervised in conducting previous WHS site inspections, or been assessed as competent to do so.
Third, I am also satisfied that pallet riders were in use at the warehouse when Mr Mburuja attended on 21 December 2021.
Fourth, the defendant had a WHS department that should have known what MHE was commonly in use in warehouses and how it was used.
Fifth, the defendant had extended contact with the 28 labour hire employees placed to work at the warehouse in the period from 13 May 2021 until 7 February 2022. The defendant did not have any system in place to make enquiries of the labour hire workers to find out what work they were doing, if they were using machinery or MHE, what training they had received or what supervision they were being provided. Put simply, the defendant failed to make reasonable enquiries of their own employees as to the tasks they were performing and how they were undertaking those tasks. I am satisfied that the defendant’s contact with the labour hire workers at the warehouse prioritised its commercial interests in ensuring their reliable attendance at work and their progression to full-time placement for a fee, over their health and safety.
Sixth, the defendant failed to enforce its own system of conducting a WHS site inspection every six months that would have provided the opportunity to observe the work of the labour hire workers at the warehouse. No WHS site inspection had been carried out at the time of the incident (9 February 2022) since 13 May 2021. There were no relevant COVID restrictions in place to prevent the defendant conducting a WHS site inspection in November 2021. Mr Kennedy had told Ms Richards on 1 November 2021 that he was open to site visits by Momentum. The defendant did not have in place a contractual right of entry to the warehouse to conduct a WHS site inspection. When Mr Mburuja attended the warehouse on 21 December 2021, he had an intention of conducting a WHS site inspection. His evidence was unclear as to why he did not do so, but he suggested that he was told that the operations at the warehouse were busy and behind schedule and he accepted that as a reason why he could not have contact with the labour hire workers on that day. I am satisfied that the defendant’s dealings with Saveba prioritised its business relationship over the health and safety of the labour hire workers it placed at the warehouse.
Seventh, the defendant had the opportunity to ask Saveba precisely what tasks the labour hire employees were being asked to perform and how but failed to do so. The defendant did not have in place a system of making specific enquiries of its host employers as to the type of work that the labour hire workers were being asked to perform, what machinery was involved in that work, what training the labour hire workers were receiving or what supervision they were provided with. The defendant failed to make adequate enquiries of Saveba as to the tasks the labour hire workers were performing and how they were undertaking those tasks.
Finally, there was a large volume of guidance material available regarding the risks posed by the use of mobile plant in the workplace, that referred to the pleaded risk.

These particulars can be conveniently dealt with together.
The defendant failed to obtain a written position description for the work to be performed by the labour hire workers at the warehouse. The description of the work provided to the workers before the commencement of their placement at the warehouse was rudimentary.
The defendant failed to make adequate enquiries as to the nature of the work performed at the warehouse and how the work would be undertaken.
Pallet riders were a critical piece of MHE used at the warehouse. They were essential to Saveba’s system of work which involved the transportation of goods throughout the warehouse on pallets. The evidence of the Saveba supervisors was that the labour hire workers were directed to use pallet riders to conduct some of the work and that the labour hire workers were required to have some cross-functionality in the warehouse operations, which on occasions required the use of a pallet rider. They also were essential to ensuring that labour hire workers were not required to manually lift items weighing more than 20kgs.
It was not reasonable for the defendant to conclude that the labour hire workers would perform only the tasks that Ms Richards understood to be the core tasks of a furniture assembler or QC worker for a number of reasons. First, Ms Richards did not have a good understanding from her visits to the warehouse on 7 and 13 May 2021 as to what the core tasks were. Second, it was reasonably foreseeable that the labour hire workers would be asked to perform tasks incidental or additional to their core tasks, or to fill in where they were needed, such as to fill absences related to COVID-19. The additional or incidental work referred to in the evidence was work that the labour hire employees were qualified for and capable of doing and did not vary greatly from the work on the QC Carpet. Third, the defendant did not train Ms Richards adequately to enquire about the possibility that the labour hire workers may be required to perform incidental or additional duties. Fourth, the defendant employed qualified WHS staff who would have been in a position to make a more reliable assessment of the work tasks at the warehouse.
The defendant went from providing some induction training to the labour hire workers when there were no relevant COVID-19 restrictions to no induction training when there were COVID-19 restrictions in place. Mr Attard was shown the Understanding Safety at Work video when he attended the defendant’s office for his interview with Ms Richards.
By comparison, Mr Krupowicz and Mr Fifita did not receive any form of induction from the defendant, because the COVID-19 restrictions prevented their attendance in person at the defendant’s office. However, the COVID-19 restrictions did not justify the defendant providing inadequate information, training or instruction to the labour hire workers about the risks that they may face at the warehouse and how to control them. It was incumbent on the defendant to provide some information, which it could have easily included in the email advising the labour hire workers, such as Mr Krupowicz and Mr Fifita, that they were successful in obtaining employment at the warehouse.
I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to take the steps set out in [11](a) and (b) of the Summons.

The only significant consultation that occurred between the defendant and Saveba occurred at the WHS site inspection of 13 May 2021. For the reasons I have given, that consultation process was seriously inadequate.
The defendant failed to obtain a written position description from Saveba for the roles it was providing the labour hire workers to perform. This made it difficult for the workers to understand if they were being asked to undertake tasks outside of the position description.
The defendant had in place a system of conducting WHS site inspections of the premises of its host employers every six months. The WHS site inspections gave the defendant the opportunity to observe the work performed by the labour hire workers and to see Saveba’s safety-related policies and procedures in action. They also gave the defendant an opportunity to verify that what it was told about the work and safety at the site was accurate and complete. The WHS site inspections were conducted by the Senior Account Manager who had a relationship with the client host employer.
Ms Richards conducted a WHS site inspection at the warehouse on 13 May 2021. This was the only WHS site inspection conducted at the warehouse before the incident on 7 February 2022.
As I have already found, Ms Richards had not been adequately trained to conduct a WHS site inspection. The defendant had a WHS department and had employees with appropriate WHS qualifications and experience. They were not sent to WHS site inspections to assist the Account Managers but had a role reviewing the content of the completed SIR and were available to be consulted.
Ms Richards did not return to undertake a further WHS site inspection in November 2021. It was common ground that there were no restrictions in place that would have prevented the completion of a WHS site inspection in November 2021. Further, on 1 November 2021, Mr Stewart told Ms Richards that he was happy for her to come to the warehouse. An invitation that she did not take up.
Ms Richards left Momentum on 9 November 2021 and was replaced by Mr Mburuja. Mr Mburuja was in the process of completing Momentum’s four week induction program when he commenced work, but he did arrange and attend the warehouse on 21 December 2021, for a scheduled 15 minute meeting with Mr Stewart and Mr O’Toole. Mr Mburuja gave evidence that his intention was to conduct a WHS site inspection at the warehouse at around that time, but he did not explain why he did not do so, other than it was inconvenient to Saveba. Mr Mburuja was told that the warehouse was busy and behind schedule and that it was not convenient for him to speak to the labour hire workers on that day. The defendant had not negotiated a contractual right to enter the warehouse to conduct WHS site inspections, when it was appropriate to do so.
When Ms Richards and Mr Mburuja made contact with the Saveba managers and supervisors, by telephone or in person, about the labour hire workers they were not required by the defendant to make enquiries about the work to determine if the workers were being adequately trained to do it, what supervision they would be given or whether Saveba was complying with its health and safety duties. On the same point, they were not trained by the defendant in what to look for to determine if the labour hire workers were being adequately trained or supervised or if Saveba was complying with its health and safety duties.
Momentum had a WHS department and was capable of:

From this knowledge, the defendant should have been on notice to make enquiries about how the risks relating to the operation of pallet riders were managed at the warehouse.
The defendant was under a duty to ensure the health and safety of the labour hire workers, in so far as that was reasonably practicable, and this informs the reasonableness of its conduct. An element of reasonable practicability provided for by s 18 of the Act, is what the defendant should have known. For the reasons given, the defendant should have known that pallet riders were widely used at the warehouse and Mr Krupowicz and other labour hire workers were operating them with ad hoc training.
The defendant did not have a structured system of making enquiries of the labour hire workers or Saveba as to what work their employees were being asked to perform, how they were expected to perform it, what equipment they were being asked to use, what training they received relating to that equipment and what supervision they were being provided with. These were all enquiries that a labour hire PCBU was advised to make in the guidance material.
I accept that Ms Richards did not know that pallet riders were used at the warehouse, between 7 May 2021 and 7 November 2021. The state of Ms Richards’ knowledge was arrived at through a combination of the following. First, the topic of pallet riders was not discussed between her and Ms King on 7 or 13 May 2021. Second, she did not recall seeing a pallet rider in operation at the warehouse. Third, she was inadequately trained in Momentum’s WHS obligations, what to look for or the kinds of MHE that were regularly used in warehouses. Fourth, a lack of regular attendance at the warehouse up to about 11 October 2021, when her access was limited by the COVID-19 restrictions. Fifth, her failure to attend the warehouse between 1 November 2021 and 9 November 2021.
In all of the circumstances, I am not satisfied that if Ms Richards was labouring under a mistake of fact because of what was not discussed between her and Ms King, namely the use of pallet riders at the warehouse, that it was a reasonable mistake of fact because she was not properly trained by the defendant to make an adequate assessment of the WHS risks present at the warehouse and the defendant failed to make adequate enquiries.
The defendant had additional knowledge being the knowledge of the labour hire workers. It failed to consider this knowledge because it did not make adequate enquiries of its own employees.
Taking into account all of the evidence, I am satisfied beyond reasonable doubt that the prosecution has established that the defendant’s belief, of what Ms Richards was not told by Ms King, was not a reasonable mistake of fact. This is because it did not take into account all of the relevant information that was available and known to the defendant.
Accordingly, I am not satisfied that the defence of honest and reasonable fact has been made out.

SafeWork NSW v Momentum Consulting Group Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

Issues

Summary of conclusion

The Evidence

Credit

Prosecution witnesses

Defence witnesses

Facts

Background

Furniture assembly and quality control at the warehouse

The engagement of the defendant to provide workers for the warehouse

The agreement between Momentum and Saveba

The WHS site inspection on 13 May 2021

The employment and induction training of the Momentum workers

Brendan Attard

Kyle Peacock

Zayne Krupowicz

Alfred Fifita

The work of the labour hire employees at the warehouse involving pallet riders and the training provided by Saveba on how to operate them

Contact between the labour hire workers and Momentum

Contact between Momentum and Saveba in the period 13 May 2021 to 9 February 2022

Relevant guidance material

The incident on 9 February 2022

Factual findings

Actions taken following the incident

The Elements of the Offence

The Relevant Law

Honest and reasonable mistake of fact

Consideration

Issue 1 Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] of the Summons? (Element 2)

The pleaded risk

The likelihood of the risk occurring

The degree of harm

The defendant’s knowledge of the risk

The defendant’s knowledge of the ways of eliminating or minimising the risk

The defendant’s capacity to influence and control the work at the warehouse

Cost of the pleaded measures

The particulars of breach

(a) provide adequate information, training and instruction to workers, including:

(i) information on worker's role descriptions and specific duties with respect to the work they would be undertaking at placement businesses;

(ii) information on the risks to health and safety associated with the work that workers would be carrying out at placement businesses;

(iii) training and information as to the control measures required to be in place to protect their safety whilst undertaking duties at placement businesses.

(b) verify and document that workers understood that information, training and instruction.

(c) making regular inquiries of workers in relation to the type of work they were conducting and the training and supervision they were receiving in relation to it.

(d) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers that workers were not performing works that they were not adequately trained to perform.

(e) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers that workers were subject to appropriate supervision in the work they performed.

(f) verifying, by conducting regular site inspections/visits and/or communications with Saveba and/or workers, that works were being conducted in accordance with job descriptions, the signed Terms and Conditions of Business, and other representations made by Saveba.

(g) making reasonable enquiries of Saveba to confirm:

(i) the type of work the workers were to perform at the site inclusive of any specific training or experience required by workers to perform the work;

(ii) whether the defendant's workers had been appropriately inducted into the work health and safety practices and procedures of the site;

(iii) that sufficient supervision of workers’ work duties was in place;

(h) provide, or require Saveba to provide, sufficient information, training and instruction to workers in relation to the risks to health and safety arising from the work.

Conclusion on the Issue 1

Issue 2 – is the defence of honest and reasonable mistake of fact made out?

Verdict

Endnote

Amendments

29 October 2025

Parties

Legislation Cited (1)

Cases Cited (22)