SafeWork NSW v SMB Australia Car Transport Employment Pty Ltd; SafeWork NSW v SMB Australia Car Transport Pty Ltd; SafeWork NSW v Mytkowski

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – risk of death or serious injury – disputed facts
OTHER – gate fell on worker – worker opened gate manually – end stop had recently broken – gate ran beyond the vertical guideposts – informal and undocumented system for manual gate operation – no system to ensure gates were regularly inspected by a competent person

Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), ss 4, 165
Work Health and Safety Act 2011 (NSW), ss 19, 21, 27, 32

Cases Cited: Alameddine v R [2020] NSWCCA 232
BC v R [2020] NSWCCA 329
Chiang v R [2016] NSWCCA 45
Constantanidis v R [2022] NSWCA 4
Cowling v R [2015] NSWCCA 213
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
KMC v Director of Public Prosecutions (SA) [2020] HCA 6
Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
R v AB [2011] NSWCCA 229
R v Kirkland [2005] NSWCCA 130
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pearce [2020] NSWCCA 61
R v Wang [2020] NSWSC 1335
SafeWork NSW v Whitmarsh (No.3) [2025] NSWDC 150
Strbak v The Queen [2020] HCA 10

Texts Cited: SafeWork NSW, Code of Practice: Managing the Risks of Plant in the Workplace, August 2019
SafeWork NSW, Code of Practice: Managing the Work Environment and Facilities, August 2019
SafeWork NSW, Electric sliding gates – safety alert, 24 August 2020
SafeWork NSW, Safety Alert: Industrial gate fatality – 12 June 2020, 2020
Western Australia Mines Department, Worker crushed by falling gate, 2018

Category: Principal judgment

Parties: Proceedings 2024/115275
SafeWork NSW (Prosecutor)
SMB Australia Car Transport Employment Pty Ltd (Defendant)
Proceedings 2024/115331
SafeWork NSW (Prosecutor)
SMB Australia Car Transport Pty Ltd (Defendant)
Proceedings 2024/115347 and 2024/115391
SafeWork NSW (Prosecutor)
Andrew Mytkowski (Defendant)

Representation: Counsel:
M Moir (Prosecutor)
E James (Defendants)
Solicitors:
Department of Customer Service (Prosecutor)
Gilchrist Connell (Defendants)

File Number(s): 2024/115275; 2024/115331; 2024/115347; 2024/115391

JUDGMENT

1. This judgment concerns a disputed facts hearing conducted in four related matters. Pleas of guilty were entered by each defendant on 24 October 2024. This judgment will set out the facts found. There will be a later hearing to take place on 12 August 2026, based upon the facts set out in this judgment.

The Incident

2. The defendant SMB Australia Car Transport Pty Ltd (SMB Transport) was a conducting a business or undertaking (PCBU) involving the transport of cars throughout Australia, from its premises located at 124 Station Road at Seven Hills (the site). The defendant SMB Australia Car Transport Employment Pty Ltd (SMB Employment) employed workers to work in the business or undertaking conducted by SMB Transport. One of those workers was Mr Christopher Brajbisz. He was employed as an allocator who assigned truck drivers to pick up and deliver cars.

3. A large metal fence ran along the front of the site on Station Road. Entry to and exit from the site was through two large metal sliding industrial gates. Prior to June 2020 these gates were operated electronically and by remote control. In June 2020 the gates and motors were damaged by collision with a truck. From that time onwards they were operated manually instead of electronically by Mr Brajbisz and other workers.

4. Each gate was approximately 11 metres in length and 1.9 metres in height. Each gate weighed 800 kilograms. There was a northern gate (also described as the “uphill” gate) and a southern gate (the “downhill” gate), and when they were pulled together, they closed off the yard at the site. The gates were opened to allow trucks to exit or enter.

5. On 24 March 2022 Mr Brajbisz was at work. In the course of closing the northern gate, after a truck had exited the site, the gate overran the end vertical supports and fell onto Mr Brajbisz, resulting in serious injuries.

The risk

6. The SafeWork NSW (SafeWork) Summons in each of the four matters pleads the risk as follows:

“The risk was the risk of workers, in particular Mr Brajbisz, suffering death or serious injury as a result of the gate(s) overrunning the end vertical supports and falling onto the workers, while they were manually operating the gates at any time after the truck collision.”

The charge against each defendant

Section 19(1) Charge against SMB Employment

7. In proceedings 2024/115275 SMB Employment is charged with an offence under s 19(1) and s 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The date of the offence is between June 2020 and 24 March 2022.

8. Section 19(1) of the WHS Act provides as follows:

19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

9. Section 32 of the WHS Act provides as follows:

32 Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if—

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

10. The prosecutor SafeWork pleads particulars of the failure of SMB Employment to comply with its duty under s 19(1) of the WHS Act as follows (certain particulars were not pressed or were informally amended in final submissions):

“11. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Brajbisz, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers:

(a) [Not pressed]

(b) [Not pressed]

(c) Develop and implement a safe system of work for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a worker to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of its workers;

(d) Adequately implement a safe work method statement or safe work procedure for the manual operation of the gates;

(e) Adequately train, instruct and supervise its workers, including Mr Brajbisz, in the safe system of work and the safe work method statement or procedure referred to in (c) and (d);

(f) [Not pressed]

(g) [Not pressed]

(h) Follow up with SMB Australia Car Transport in order to prompt SMB Australia Car Transport to arrange for a competent person to promptly repair or replace the damaged gates following the truck collision in June 2020.”

11. In due course I will require SafeWork to prepare an Amended Summons to reflect the changes accepted in final submissions.

Section 19(1) and s 27 charge against Mr Mytkowski

12. In proceedings 2024/115347 SafeWork alleges that Mr Mytkowski, as an officer of SMB Employment, had a duty under s 27(1) of the WHS Act to exercise due diligence to ensure that SMB Employment complied with its duty under s 19(1) of the Act. SafeWork alleges that Mr Mytkowski failed to comply with this duty and the failure to comply with his duty exposed workers, in particular Mr Christopher Brajbisz, to a risk of death or serious injury contrary to s 32 of the WHS Act. The date of the offence is between June 2020 and 24 March 2022.

13. Section 27(1) of the WHS Act provides as follows:

27 Duty of officers

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

14. Section 27(5) of the WHS Act provides as follows:

(5) In this section, due diligence includes taking reasonable steps—

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example—

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

• reporting notifiable incidents,

• consulting with workers,

• ensuring compliance with notices issued under this Act,

• ensuring the provision of training and instruction to workers about work health and safety,

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).

15. In the Summons, SafeWork pleads particulars of the failure of Mr Mytkowski to comply with the duty under s 27(1) of the WHS Act as follows (certain particulars were not pressed or were informally amended in final submissions):

“15. The defendant failed to exercise due diligence to ensure the company complied with its duty or obligation under section 19(1) of the Act, because he failed to take reasonable steps to ensure that the company had developed and implemented one or more of the following appropriate processes or resources, including appropriate processes for responding in a timely way to information regarding incidents, hazards and risks:

(a) [Not pressed]

(b) [Not pressed]

(c) Develop and implement a safe system of work for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a worker to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of its workers;

(d) Adequately implement a safe work method statement or safe work procedure for the manual operation of the gates;

(e) Adequately train, instruct and supervise its workers, including Mr Brajbisz, in the safe system of work and the safe work method statement or procedure referred to in (c) and (d);

(f) [Not pressed]

(g) [Not pressed]

(h) Follow up with SMB Australia Car Transport in order to prompt SMB Australia Car Transport to arrange for a competent person to promptly repair or replace the damaged gates following the truck collision in June 2020.

16. The reasonable steps the defendant should have taken in exercising due diligence included one or more of the following:

(a) Acquiring and keeping up-to-date knowledge of work health and safety matters relating to the safe operation of the gates at the site, including obtaining an up-to-date copy of the manufacturer's manual of the gates, and obtaining information from a competent person/contractor about the safe operation of the gates following the truck collision in June 2020;

(b) Gaining an understanding of the nature of the operations of the company and generally of the hazards and risks associated with those operations, including:

(i) gaining an understanding of the processes and resources required for the safe operation of the gates by the company's workers;

(ii) gaining an understanding of the in-built safety features and devices of the gate including the physical end stops, and how the manual operation of the gates by the company's workers may compromise the physical end stops and therefore the safety of those workers;

(iii) obtaining a risk assessment from a competent person associated with the operation of the gates following the truck collision with the gates in June 2020;

(c) [Not pressed]

(d) [Not pressed]

(e) [Not pressed]

(f) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, to develop and implement a safe system of work for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a worker to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of its workers;

(g) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, the adequate implementation of a safe work method statement or safe work procedure for the manual operation of the gates;

(h) Providing information, training and instruction to workers, or arranging for a suitably qualified person on the company's behalf to provide information, training and instruction to workers, including Mr Brajbisz, in the safe system of work and the safe work method statement or procedure referred to in (f) and (g);

(i) [Not pressed]

(j) [Not pressed]

(k) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, for SMB Australia Car Transport to be followed up in order to prompt SMB Australia Car Transport to arrange for a competent person to promptly repair or replace the damaged gates following the truck collision in June 2020;

(l) Verifying that one or more of the resources or processes listed in paragraphs (a)-(k) above were provided, implemented and used by the workers at the site.”

16. In due course I will require SafeWork to prepare an Amended Summons to reflect the changes accepted in final submissions.

Section 21(2) charge against SMB Transport

17. In proceedings 2024/115331 SafeWork has alleged that SMB Transport had a duty under s 21(2) of the WHS Act to ensure, so far as is reasonably practicable, that the fixtures, fittings and plant at a workplace are without risks to the health and safety of any person.

18. Section 21(2) of the WHS Act provides as follows:

21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.

19. In the Summons SafeWork pleads particulars of the failure of SMB Transport to comply with its duty under s 21(2) of the WHS Act as follows (certain particulars were not pressed or were informally amended in final submissions):

“11. The defendant failed to ensure, so far as was reasonably practicable, that the gates were without risks to the health and safety of persons, in particular Mr Brajbisz, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety of persons:

(a) [Not pressed]

(b) Undertake, or arrange for a competent person to undertake, an immediate risk assessment in relation to the safety of the gates following the damage to the gates as a result of the truck collision in June 2020;

(c) Require or arrange for a competent person to repair or replace the damaged electric motors of the gates immediately after the truck collision with the gates in June 2020;

(d) [Not pressed]

(e) [Not pressed]

(f) [Not pressed]

(g) Develop and implement a safe work method statement or a safe work procedure for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a person to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of persons;

(h) Inform and instruct persons working at the site, including Mr Brajbisz, in the safe work method statement or safe work procedure referred to in (g);

(i) Co-ordinate and arrange with SMB Australia Car Transport Employment for persons working at the site, including Mr Brajbisz, to be trained and supervised in the safe work method statement or safe work procedure identified in (g).”

20. In due course I will require SafeWork to prepare an Amended Summons to reflect the changes accepted in final submissions.

Section 21(2) and s 27(1) charge against Mr Mytkowski

21. In proceedings 2024/115391 SafeWork alleges that Mr Mytkowski, being an officer of SMB Transport, failed to comply with his duty under s 27(1) of the WHS Act in that he failed to exercise due diligence to ensure that SMB Transport complied with its duty under s 21(2) of the WHS Act.

22. SafeWork pleads the failures of Mr Mytkowski to comply with his duty under s 27(1) of the WHS Act as follows (certain particulars were not pressed or were informally amended in final submissions):

“15. The defendant failed to exercise due diligence to ensure the company complied with its duty or obligation under section 21(2) of the Act, because he failed to take reasonable steps to ensure that the company had developed and implemented one or more of the following appropriate processes or resources, including appropriate processes for responding in a timely way to information regarding incidents, hazards and risks:

(a) [Not pressed]

(b) Undertake, or arrange for a competent person to undertake, a risk assessment in relation to the manual operation of the gates following the damage to the gates as a result of the truck collision in June 2020;

(c) Require or arrange for a competent person to repair or replace the damaged electric motors of the gates immediately after the truck collision with the gates in June 2020;

(d) [Not pressed]

(e) [Not pressed]

(f) [Not pressed]

(g) Develop and implement a safe work method statement or a safe work procedure for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a person to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of persons;

(h) Adequately inform and instruct persons working at the site, including Mr Brajbisz, in the safe work method statement or safe work procedure referred to in (g);

(i) Co-ordinate and arrange with SMB Australia Car Transport Employment for persons working at the site, including Mr Brajbisz, to be adequately trained and supervised in the safe work method statement or safe work procedure referred to in (g).

16. The reasonable steps the defendant should have taken in exercising due diligence included one or more of the following:

(a) Acquiring and keeping up-to-date knowledge of work health and safety matters relating to the safe operation of the gates at the site, including obtaining an up-to-date copy of the manufacturer's manual of the gates, and obtaining information from a competent person/contractor about the safe operation of the gates following the truck collision in June 2020;

(b) Gaining an understanding of the nature of the operations of the company and generally of the hazards and risks associated with those operations, including:

(i) Gaining an understanding of the processes and resources required for the safe operation of the gates by the persons working at the site;

(ii) Gaining an understanding of the in-built safety features and devices of the gate including the physical end stops, and how the manual operation of the gates by persons working at the site may compromise the physical end stops and therefore the safety of those persons;

(iii) Obtaining a risk assessment from a competent person associated with the operation of the gates following the truck collision with the gates in June 2020;

(c) [Not pressed]

(d) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, for a competent person to promptly undertake a risk assessment in relation to the safe operation of the gates following the damage to the gates as a result of the truck collision in June 2020;

(e) Ensuring or directing someone else on the company's behalf to ensure, a competent person to promptly repair or replace the damaged electric motors of the gates following the truck collision with the gates in June 2020;

(f) [Not pressed]

(g) [Not pressed]

(h) [Not pressed]

(i) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, the adequate implementation of a safe work method statement or a safe work procedure for the manual operation of the gates pending the repair or replacement of the gates, including that:

(i) a physical end stop was installed on the northern gate to prevent the gate overrunning its vertical support;

(ii) a visual inspection of the gates was regularly conducted to determine if it was safe for a person to operate the gates manually, and to check that the end stops were in place to prevent the gates overrunning their vertical supports;

(iii) a competent person was engaged to determine whether the manual operation of the gates was without risk to the health and safety of persons;

(j) Requiring or arranging, or directing someone else on the company's behalf to require or arrange, to inform and instruct persons working at the site, including Mr Brajbisz, in the safe work method statement or safe work procedure referred to in (i);

(k) Co-ordinate and arrange with SMB Australia Car Transport Employment for persons working at the site, including Mr Brajbisz, to be trained and supervised in the safe work method statement or safe work procedure referred to in (i);

(I) Verifying that one or more of the resources or processes listed in paragraphs (a)-(k) above were provided, implemented and used by persons working at the site.”

23. In due court I will require SafeWork to prepare an Amended Summons to reflect the changes accepted in final submissions.

The Task of this Court

24. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my findings free of partiality, prejudice, favour or ill-will

25. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.

26. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

27. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4.

28. The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] the High Court said:

“a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

29. The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64] – [66] (French CJ, Bell, Keane and Nettle JJ), and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [23] (Gleeson CJ).

30. Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Pearce [2020] NSWCCA 61 at [69] – [73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA 232 at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13] – [16] (Hunt AJA, Grove and Hall JJ agreeing). By contrast, any disputed fact which the defendant seeks to rely on must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).

31. On 22 July 2025 a direction was made pursuant to s 4(2) of the Evidence Act 1995 (NSW) that the law of evidence applies to this disputed facts sentence hearing.

Evidence Called

32. SafeWork called the following witnesses to give oral evidence: Inspector Gleeson; Inspector Tilden; Mr Brajbisz; Inspector Beacham; and Ms Glodek. There were really no credibility issues, save that I prefer the evidence of Mr Mytkowski to that of Mr Brajbisz, to the effect that Mr Mytkowski did give verbal instructions to all workers concerning how to manually operate the gates.

33. SafeWork tendered the documents marked PX 1 to PX 12 in the Exhibit List.

34. The defendants called the following witnesses: Mr Mytkowski; Ms Gorrie; Mr Emanuel; and Dr Casey. All were credible witnesses.

35. The defendants tendered the documents marked DX 1 to DX 5 in the Exhibit List.

Issues Identified by Defendants

36. Counsel for the defendants opened the case for the defendants by handing up a list of six factual issues to be determined (MFI 5). Towards the end of the hearing, I indicated my tentative views about the findings on these issues. After consideration, counsel for SafeWork indicated in final submissions that SafeWork accepted my proposed findings.

37. The six identified issues and my findings on those issues are:

38. Were the gates designed to be operated both manually and electronically? Yes. The gates were originally supplied and installed as mechanical gates and were later converted to electronic operation.

39. Were the gates capable of being manually operated in a safe manner by using the sequential system of opening and closing the gates… provided the system was consistently used by workers? Yes. The sequential system was taught to Mr Mytkowski by “Douggie”, who supplied and installed the gates. The sequential system was an administrative control which depended on workers using it, as taught, without fail. By contrast, reinstatement of electronic operation would have provided a higher level engineering control.

40. If the sequential system was used when closing the gates, was the end stop engaged as a means of arresting overtravel? No. If used every time without fail, the end stop would not have struck the upright posts, leading to weakening and fracture of the end stop.

41. Did workers, including Chris Brajbisz, receive informal ‘on the job’ training in using the sequential system when opening and closing the gates? Yes. I accept the evidence of Mr Mytkowski, which as corroborated by the evidence of Mr Emanauel. I do not accept the evidence of Mr Brajbisz that he was left to work it out for himself. Mr Brajbisz said that he used the sequential system 99% of the time, which indicates a consistent but not perfect pattern of following Douggie’s method as taught by Mr Mytkowski. This evidence also corroborates that of Mr Mytkowski.

42. Did the end stop most likely fail either immediately before the gate over travelled beyond the support of the vertical post, or within a day or so before the incident? Yes. I accept the evidence of Dr Casey in this regard.

43. Was the failure of the end stop due to poor welding of a previous repair to the end stop that was attached to the uphill gate? No. There was no evidence to support this theory.

Approach Taken To Making Findings of Fact

38. On 11 March 2025 a direction was made that each party served a schedule setting out the particulars in the pleading and the facts that are in dispute. Both parties put much effort into producing schedules, but unfortunately the matters in dispute between the parties remained extensive.

39. The Schedule of Facts reproduced most of the Statement of Facts alleged by the prosecutor and set out each defendant’s dispute or proposed amendment to the facts. This schedule ran to 29 pages (PX 11). A revised version was tendered during final submissions (PX 13). The schedule dealing with the particulars in each Summons raised disputes about the wording of many of the particulars alleging the reasonably practicable steps which each defendant ought to have taken. This schedule ran to 16 pages (PX 12).

40. After all the evidence had been taken, counsel were able in oral closing submissions to indicate that many facts were no longer in dispute. I am grateful for that practical and pragmatic approach. It has simplified the task of the court.

41. I set out below the findings of fact. I do so by:

42. Retaining and adopting numbers assigned to each proposed fact by SafeWork in the Statement of Facts attached to each Summons.

43. Indicating where a fact was still in dispute, making a finding and setting out my reasons for that finding.

44. Unless otherwise indicated, every other fact was agreed, either because it was never disputed by the defendants or because it was agreed in final submissions. This latter category includes versions of some facts proposed by the defendants, and agreed to by SafeWork in final submissions.

Findings of Fact: Section 19(1) Charge against SMB Employment and s 21(2) Charge against SMB Transport

42. I find the following facts:

43. SafeWork NSW being the regulator as defined by s 4 of the Work Health and Safety Act 2011 (the Act), is empowered under s 230(1)(a) of the Act to institute proceedings in this matter.

44. At all material times, SMB Australia Car Transport Pty Ltd (ACN 600 057 412) (SMB Transport) was a registered corporation with its registered address at 124 Station Road Seven Hills in the State of New South Wales.

45. At all material times, SMB Transport conducted a business or undertaking which involved the transportation of motor vehicles throughout Australia from its premises located at 124 Station Road Seven Hills (the site). The site was operated by SMB Transport to store vehicles which were loaded onto car carriers for interstate transportation.

46. At all material times, Andrew Mytkowski (Mr Mytkowski) was the sole director of SMB Transport. He worked most days at the site from Monday to Saturday and had full management and control of the business conducted by SMB Transport.

47. The site was owned by Ella Girl Holdings Pty Ltd, the trustee for a family trust involving Mr Mytkowski, known as the Ella Family Trust. SMB Transport leased the site from the trustee.

48. At all material times, SMB Australia Car Transport Employment Pty Ltd (ACN 600 931 600) (SMB Employment) was a registered corporation with its registered address at 124 Station Road Seven Hills in the State of New South Wales.

49. At all material times, SMB Employment conducted a business or undertaking which involved the engagement and supply of persons to work in the business of SMB Transport (the workers). As part of its business, SMB Employment was the employer of the workers and paid them accordingly.

50. At all material times, Mr Mytkowski was the sole director of SMB Employment, and he had fuII management and control over its business. Mr Mytkowski held overall responsibility for the hiring and firing of the workers engaged by SMB Employment at the site.

51. As at March 2022, SMB Employment employed approximately 11 workers. The workers reported to Mr Mytkowski at the site. Mr Mytkowski provided these workers with instruction and supervision when he attended the site.

52. Mr Christopher Brajbisz was employed at the site as a fuII-time allocator, who assigned truck drivers for pickup and delivery jobs. He had been employed at the site by SMB Employment since December 2014.

53. Mr Paul Emanuel was employed by SMB Employment as a truck driver. He attended the site to load and unload vehicles off trucks.

54. The site consisted of an office, a warehouse, and a yard in which the vehicles to be transported by truck were parked and stored. The primary means of entering and exiting the site was through a large pair of sliding industrial gates across the entrance driveway of the site. The gates included vertical guide posts, fencing and end stops to prevent each gate from over travelling in the closing direction.

55. The gates were all metal in construction, and were designed and installed to be operated manually and, following installation of a motor drive unit, also electronically and by a remote control or a mobile phone. In the event of a power failure or some other malfunction, the pinion drive could be disconnected at the discretion of the person with management and control of the plant and the gates operated manually. Each gate was approximately 11 metres in length and 1.9 metres in height, and weighed approximately 800 kilograms.

56. The two sliding gates (northern and southern) met in the middle when closed. The gates when opened provided an opening of 20 metres wide to the site. There was a slight slope downwards across the entrance from north to south of approximately 2 in 100.

57. The gates incorporated limit switches to turn off the power to the motor drive unit when the gates reached their correct either fully closed or fully opened positions. The gates also included an end stop attached to the bottom rail of each gate. In the event of a malfunction of the motor drive unit, or when manually closing the gate, the end stop prevented the gate over travelling, coming out of its vertical guide posts and falling over.

58. The operation of the limit switches also minimised the risk of long term wear and tear damage to the physical end stops.

59. In June 2020, a truck reversed into the southern gate and struck the electric motor and sensor making the sensor inoperable. As a result of the damage caused by the truck collision, the gates couId not be operated electronically.

60. From June 2020 until the time of the incident (24 March 2022), the gates were opened and closed manually by the workers at the site (i.e. rolling the gates by hand) due to the powered gate system being damaged by the truck collision. Since the powered gates limit switch system was no longer in operation, there was no automatic system to prevent the risk of long term wear and tear damage to the physical end stops.

61. SMB Transport was a person with management and control of the gates at all relevant times. SMB Employment was the person with management and control of the workers who were employed at the site and who used the gates to allow entry/exit of the site. Mr Mytkowski was the person who managed the businesses of SMB Transport and SMB Employment at the site.

62. Mr Mytkowski became aware of the truck collision and the resultant damage to the powered gate system shortly after it occurred. Mr Mytkowski was also aware from the time of the truck collision that the gates were opened and closed manually by the workers at the site due to the powered gate system being damaged in the collision. During SafeWork’s investigation into the incident, SMB Transport and Mr Mytkowski told the SafeWork Inspectors that they called welders to attend the site and fix the gate, however they were told the welders would attend the site when they had time or were allowed to do so due to COVID lockdowns.

63. The powered gate system was not repaired or replaced at any time from June 2020 up to and including the day of the incident (24 March 2022).

64. From June 2020 to 24 March 2022, Mr Brajbisz manually opened the metal gates at the site each morning to allow trucks to enter and exit the site. Mr Brajbisz was usually the first worker to arrive at the site each morning and open up the gates. He then closed the gates until the arrival of the first driver.

65. On 24 March 2022 Mr Brajbisz commenced work at approximately 5:45am when he arrived at the site. Mr Brajbisz unlocked the gates and pushed them open manually. Mr Emanuel arrived at approximately 6:00am and departed the site around 6:45am with a preloaded truck. At this time, Mr Brajbisz was alone and wanted to ensure his security due to previous theft at the site. He went to close the gates starting with the northern gate first. He positioned himself at the front of the gate, rolling the gate downhill to the closed position.

66. It was as this time as the northern gate rolled towards the desired closed position, that the end of the gate travelled beyond the vertical upright posts, resulting in the gate falling onto Mr Brajbisz. This trapped him between the gate and concrete driveway for approximately three minutes.

67. Workers from another business across the road saw Mr Brajbisz approximately one and half minutes after the incident and rushed to his aid. The workers lifted the gate off Mr Brajbisz with a forklift and called emergency services. The weight of the gate required the workers to use the forklift to lift the gate off Mr Brajbisz.

68. The workers also called Mr Emanuel using Mr Brajbisz's mobile phone who then returned to the site and waited for the ambulance to arrive with Mr Brajbisz.

69. Following the incident, there was no end stop on the northern gate which fell onto Mr Brajbisz. A worker, Ms Daniella Gorrie, took a photograph of the end stop.

70. The injuries sustained by Mr Brajbisz included a fractured pelvis, an interior bladder wall injury, rib, and vertebrae fractures. He underwent surgery at Westmead Hospital to repair the torn bladder and to insert screws for the pelvic fracture.

71. Mr Brajbisz was 53 years of age at the time of the incident.

72. The Code of Practice: Managing the Risks of Plant in the Workplace, August 2019, was published and available for reference and guidance at the time of the incident. It included guidance in Pt 3.6 that plant with damage that poses a risk to health and safety should be withdrawn from service until those risks have been controlled.

73. The Code of Practice: Managing the Work Environment and Facilities, August 2019, was also published and available at the time of the incident. It provided, in Pt 1.1, guidance to entities having responsibilities under s 19 of the Act. In Pt 1.3 it provided guidance on the need for prompt replacement or repair to damaged fixtures and fittings within the work environment.

74. In 2020 SafeWork published a video safety alert on powered sliding gates detailing the hazards and controls necessary for safe operation. The video safety alert can be found at: https://www.youtube.com/watch?v=oa6Ih iA1ebU. (This fact was in dispute. The defendants wanted this fact deleted. I include it in the facts found, because it was guidance material which was readily available.)

75. In 2020 SafeWork issued an incident information release on powered sliding gates detailing the hazards and controls necessary for safe operation. The release can be found at: https://www.safework.nsw.gov.au/compliance-and-prosecutions/incident-information-releases/other-industries/industrial-gate-fatality-20-june-2020.

76. In 2018 the Western Australia Mines Department issued a safety alert on large metal sliding gates detailing the hazards and controls necessary for safe operation. The safety alert can be found at: https://www.commerce.wa.gov.au/sites/default/files/atoms/files/08-2018worker crushedbyfallinggate.pdf. (This fact was in dispute. The defendants wanted this fact deleted. I include it in the facts found, because it was guidance material which was readily available.)

77. The Western Australian safety alert provided that: when an incident occurs that results in damage to a gate or when it is identified that a gate is not working correctly, the gate should be immediately tagged out and the employer property owner and/or property manager notified. (Since I have found fact 34 above, I also find this fact.)

78. The Western Australian safety alert also provided that: any damaged or defective gates should be immediately assessed and repaired by a competent person, and that until such repairs are completed, measures must be implemented to keep people away from a damaged gate (for example by temporary barricades, exclusion zones, warning signs). (Since I have found fact 34 above, I also find this fact.)

79. [Deleted]. (I decline to find the fact proposed by SafeWork concerning findings made by the Queensland Coroner. There was no evidence that this finding was publicly available.)

80. The gates were designed to incorporate several in-built safety devices, including that:

(a) the limit switches caused the gates when powered to meet in the middle of the driveway opening, so that the gates cannot overtravel past the vertical guide posts and fall over; (b) the gates could be operated with a mobile phone to allow workers to be outside of the danger zone when they were operating the gates; (c) the physical end stops were additional protective devices to prevent the gates falling over in the event of a powered gate malfunction, or when the gates were manually opened or closed; and (d) the limit switches prevented the end stops from hitting the guide posts, therefore reducing the risk of long term damage or wear and tear to the end stops.

39. The manufacturer's manual for the gates stated that the gate could be manually operated in emergency situations such as power failure. The manual also recommended that regular inspections and maintenance of the gates and its various components was carried out by a qualified technician on at least a six monthly basis. (The parties put forward different summaries of the important parts of the manual. The manual was in evidence at PX 1, Tab 8 and speaks for itself. The parties are free to make submissions about the manual at the second sentence hearing.)
40. The manufacturer's manual for the gate motors stated that, in the event of safety devices being out of service, repairs to the automation of the gates should be arranged immediately. (The parties put forward different summaries of the important parts of the manual. The manual was in evidence at PX 1, Tab 8 and speaks for itself. The parties are free to make submissions about the manual at the second sentence hearing.)
41. There was no system in place for ensuring that the gates were promptly inspected, repaired and/or made safe by a competent person after the truck collision with the gates occurred in June 2020. There was no system in place to ensure that a visual inspection of the gates was regularly conducted by a competent person to determine if it was safe for a person to operate the gates manually, and to check that the end stops were adequate and in place to prevent the gates overrunning their vertical supports. (This fact was in dispute. I make the finding sought by the prosecutor, which emphasises the need for inspection by a competent person. Mr Mytkowski and his employees used a blower to clean out debris from the rails of the gates, and in doing so they were able to see the end stops. But that incidental sighting told them nothing about the strength and integrity of the end stops, nor were they quaklifuied to assess the safety of the end stops.)
42. [Deleted - Not pressed]
43. Mr Mytkowski was aware that the powered gate system was damaged by the truck collision in June 2020. Mr Mytkowski did not adequately follow up, or arrange to adequately follow up, with a competent person to attend the site and promptly carry out the repairs necessary to restore the powered gates system as soon as reasonably practicable.
44. The workers were instructed to continue to manually operate the gates in order to secure the site and safeguard the vehicles kept there.
45. Previously in 2017, Mr Mytkowski and SMB Transport had arranged and approved for a competent person, ACDC Motorized Solutions Pty Ltd (ACDC Motorized Solutions), to carry out repairs to the gate motors for a cost of approximately $3,182.
46. Mr Mytkowski and SMB Transport did not obtain a copy of the manufacturer's manual for the MEC 200 electro-mechanical gate operator from ACDC Motorized Solutions or from elsewhere. No copy of the manual was kept at the site.
47. During the period June 2020 to 24 March 2022, there was an informal and undocumented system of work in place for the manual operation of the gates. (SafeWork pressed for the words “informal and undocumented” to be included. I do include them, because this was exactly what the system was.)
48. The informal and undocumented system of work relied on by SMB Transport, SMB Employment and Mr Mytkowski was that the southern gate (ie downhill gate) was to be pulled across and locked into place first, and then the northern gate (ie uphill gate) was to be closed second to secure the site. This gate would need manual support to walk it down. The system relied on the workers closing the southern gate first, to ensure that, when closing the northern gate, its movement was stopped when it met the secured southern gate. (SafeWork pressed for the words “informal and undocumented” to be included. I do include them, because this was exactly what the system was.)
49. No adequate risk assessment had been done in relation to the manual operation of the gates by the workers at the site.
50. There was no safe work method statement or safe work procedure developed for the manual operation of the gates. There was no process or procedure in place for the gates to be inspected by the workers prior to the gates being manually closed by them to check that its components were in good working order, in particular that the end stops were intact and free from any damage. (The defendants wanted the words “or safe work procedure” deleted. I include them as simply another way of describing a formal documented procedure.)
51. Following the incident, on the northern gate (ie uphill gate) that fell on Mr Brajbisz there was no physical end stop in place.
52. The supervision, training, instruction or information that had been provided to the workers at the site in relation to the safe manual operation of the gates was inadequate. Workers were not supervised, trained or instructed to carry out an inspection of the gates and its components prior to their manual operation in the period from June 2020 to the incident.
53. There were no documented procedures or processes relating to work health and safety (WHS) at the site. There was no written safety policy, safety handbook and safety management plan. Issues relating to WHS were only raised on a verbal basis at the site or by text messages to Mr Mytkowski. There were no regular meetings or toolbox talks held with the workers at the site to discuss WHS matters. No records were kept of any WHS matters raised by the workers. (SafeWork opposed the inclusion of the words “or by text messages to Mr Mytkowski”. I include the words, as Mr Mytkowski explained that quite a bit of communication occurred by text message, because his transport drivers were out of the road so much and were only occasionally at the site.)
54. Mr Mytkowski did not have any formal qualifications or training in WHS matters. (The defendants wanted deletion of “formal” before “qualifications”. There was no evidence given by Mr Mytkowski that he had informal qualifications, whatever that phrase may mean, if anything.)
55. In response to the incident SafeWork issued improvement notices to SMB Employment that related to the risk that gave rise to the incident.
56. In response to Improvement Notice 7-415213, additional end stops were welded onto the rear of the northern gate. The end stops were installed on 30 March 2022 for a cost of $517. This work was carried out by a competent person, Pendle Hill Welding Supplies, and paid for by SMB Transport.
57. In response to Improvement Notice 7-415208, a documented monthly inspection program for the gates and gate components was developed. Inspections were then signed off by Mr Mytkowski each month.
58. Following the incident, SMB Transport, SMB Employment and Mr Mytkowski engaged or arranged for a competent person to be engaged, to repair the powered gate system, thus eliminating the risk as the gates resumed electronic operation. This repair work was carried out by the competent person, My Automatic Gate Pty Ltd, on 6 April 2022 for a cost of $6,985. This work was paid for by SMB Transport.
59. SMB Employment and Mr Mytkowski also put in place a documented system of work for the automated and (in the event of an emergency) manual operation of the gate. (The defendants contended that the system put in place straight after the incident was “safe”. It was safe in relation to the automatic operation of the gates. It was not safe because of the significant deficiencies in the written system for manual operation of the gates, a matter conceded by Mr Mytkowski.)

Findings of Fact: s 27 charges against Mr Mytkowski

43. The facts found above are also facts found in relation to the two s 27 charges against Mr Mytkowski. In addition, SafeWork also sought the findings set out in pars 55 and 57 of the Statement of Facts annexed to the s 27 Summonses (par 56 was not pressed). I find the following additional facts:

44. Mr Mytkowski did not keep up-to-date knowledge of work health and safety matters relating to the safe operation of the gates at the site. He did not obtain, or take steps to obtain, an up-to-date copy of the manufacturer's manual of the gates. He did not obtain any information from a competent person or contractor about the safe operation of the gates following the truck collision in June 2020: par 55 of the Statement of Facts. (The defendants opposed this fact being found. All of the matters in par 55 have been established on the evidence).

45. Mr Mytkowski did not obtain, or take steps to obtain, a risk assessment from a competent person associated with the operation of the gates following the truck collision with the gates in June 2020: par 57 of the Statement of Facts.

Findings in Relation to Particulars Pleaded in each Summons

Section 19(1) Charge against SMB Employment

44. SMB Employment accepts that it is guilty of the offence charged because it failed to take the steps pleaded in subpars 11(d) and 11(e) of the Summons. Employment disputes subpars 11(c) and 11(h).

45. I find that SafeWork has not established subpar 11(c)(i) of the Summons, because the end stop was on the end of the northern gate but broke off either in the incident or immediately before it.

46. I find that SafeWork has established subpar 11(c)(ii) and (iii) because SMB Employment should have had a competent person assess the safety of the manual operation of the gate, which would have included a proper visual inspection, not just a passing glance by an unqualified person. The fact that SMB Employment did not own the site does not relieve it of the responsibility of taking steps to ensure the safety of its employees.

47. I find that SafeWork has established subpar 11(h) because SMB Employment should have required SMB Transport, the owner of the site, to take appropriate steps, in the interests of the safety of SMB Employment’s employees. In any event, the common ownership and control of SMB Employment and SMB Transport cannot be ignored.

Section 19(1) and s 27 charge against Mr Mytkowski

48. The findings above concerning the failures of SMB Employment are also findings which apply to the charge against Mr Mytkowski in relation to his directorship of SMB Employment.

49. Mr Mytkowski accepts that he is guilty of the offence charged because he failed to take the steps pleaded in subpars 16(a), 16(g) and 16(h) of the Summons. Mr Mytkowski disputes subpars 16(b), 16(f), 16(k) and 16(l).

50. I find that SafeWork has established subpars 16(b) and 16(f). A director must exercise due diligence to take reasonable steps to have the company: become informed about hazards and risks; conduct risk assessments; and inspect plant and ascertain that it is safe: see SafeWork NSW v Whitmarsh (No.3) [2025] NSWDC 150 at [30] – [40].

51. I find that SafeWork has established subpars 16(k) and 16(l). Due diligence includes verifying that resources and processes have been provided to and used by the company: see s 27(5)(f) of the WHS Act.

Section 21(2) charge against SMB Transport

52. SMB Transport, while adhering to its plea of guilty, disputes subpars 11(b), (c), (g), (h) and (i) of the Summons.

53. I find that SafeWork has established subpar 11(c) because SMB Transport failed to take adequate steps to reinstate the electronic operation of the gates, which would have made them safer and which would have avoided the risk that the safe manual operation of the gates depended on workers following instructions 100% of the time. In other words, there was a higher order engineering control which was better than the existing administrative control ie manual operation. I accept that during the pandemic it was very hard to have repairers do the work. However, the lockdown orders were lifted in October 2021, but the gates remained damaged in March 2022 when the incident occurred. There was no real evidence that efforts were made in that period to have the gates repaired.

54. I find that SafeWork has established subpars 11(b), 11(g), 11(h) and 11(i) because SMB Transport failed to take reasonably practicable steps, before the gates could be restored to electronic operation, to minimise the risks to workers. What was required was a formal, documented, considered system (including training and supervision) for manual operation of the gates.

Section 21(2) and s 27(1) charge against Mr Mytkowski

55. The findings above concerning the failures of SMB Transport are also findings which apply to the charge against Mr Mytkowski in relation to his directorship of SMB Transport.

56. Mr Mytkowski accepts that he is guilty of the offence charged because he failed to take the steps pleaded in subpars 16(a), 16(j) and 16(k) of the Summons.

57. Mr Mytkowski disputes subpars 16(b), 16(d), 16(e), 16(i) and 16(l). For the same reasons as have been set out in pars [50] and [51] above, I find that SafeWork has established these disputed particulars.

Orders

58. The orders of the court are:

59. In proceedings 2024/115275 being the s 19(1) charge against SMB Australia Car Transport Employment Pty Ltd I make the findings of fact set out in par [42] and the findings of breach of duty set out in pars [44] - [47].

60. In proceedings 2024/115347 being the s 27 and s 19(1) charge against Mr Mytkowski I make the findings of fact set out in pars [42] and [43] and the findings of breach of duty set out in pars [49] - [51].

61. In proceedings 2024/115331 being the s 21(2) charge against SMB Australia Car Transport Pty Ltd I make the findings of fact set out in par [42] and the findings of breach of duty set out in pars [53] - [54].

62. In proceedings 2024/115391 being the s 27 and s 21(2) charge against Mr Mytkowski I make the findings of fact set out in par [42] and [43] and the findings of breach of duty set out in pars [56] - [57].

63. In each matter, order SafeWork NSW to file within 28 days an Amended Summons to reflect the concessions and variations made in final addresses.

64. Note the orders made on 20 March 2026 concerning the final sentence hearing on 12 August 2026.

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