The defendant company, a Betterlay Brick and Block laying Pty Ltd, was charged under sections 33 and 19(2) of the Work Health and Safety Act 2011 (WHS Act), after a worker was injured when a block wall collapsed, pinning him. The incident occurred on 2 December 2014, and the matter proceeded to hearing in the Beenleigh Magistrates Court on 4 and 5 October 2017. On 12 October 2017, the defendant was found guilty, and convicted and fined $35,000.
The defendant appealed to the District Court against the conviction and, on 24 August 2018, the appeal was allowed.
That prosecution appealed the decision of the District Court to the Court of Appeal, on the ground that the primary judge erred in the interpretation and application of section 33 of the WHS Act. The prosecution contended that the court erred in its interpretation that an offence against section 33 was not a continuing offence.
On 27 March 2020, the Court of Appeal allowed the prosecution appeal, set aside the order of the District Court and, in lieu, ordered the defence appeal to the District Court be dismissed with costs.
The prosecution alleged the offence occurred on 2 December 2014, the date the wall collapsed. The wall had been constructed by the defendant on 28 November 2014. The defendant argued that, by 2 December 2014, its duty had “expired”, and that whilst the risk caused by its defective work continued until that date, it has no legal duty pursuant to s.19(2) of the Act beyond the date of construction.
The Court of Appeal held [at 55]:
"The argument is flawed in failing to comprehend that the alleged breach giving rise to the risk to safety that occurred on 28 November 2014 continued and remained operative as at 2 December 2014. When the wall collapsed, the respondent had continued to fail to ensure, so far as was reasonably practicable, that the safety of others was not put at risk from the work carried out in building the wall. The respondent's breach of duty was its failure to ensure that steel reinforcement was inserted, thereby rendering the wall liable to collapse without warning as it did on 2 December 2014. That was a sufficient basis for contravention of s 33".
Section 33, duty 19(2), Work Health and Safety Act 2011