Back to basics: the Industrial Court's first defended hearing in work health and safety

The recent judgment by Her Honour Judge Paingakulam in SafeWork NSW v E.J. & D. Hammond Pty Ltd [2026] NSWIC 5 delivered on 25 February 2026 marks a significant milestone, being the first judgment following a defended hearing since the Industrial Court of New South Wales was reconstituted.

This decision provides valuable insight into how the Court will approach contested work health and safety matters, demonstrating a careful, methodical assessment of evidence and legal principles that mirrors the approach that was formerly taken by the District Court.

On 14 February 2023, Mr Russell Howarth, a pipe layer working for E.J. & D. Hammond Pty Ltd (the defendant), was injured when a portion of a trench in which he was working collapsed on top of him at a site in Thrumster Street, Port Macquarie. Mr Howarth, working alongside Mr Adrian Nix, was laying sewer pipes for the defendant's civil works business. The defendant operated an earthmoving and civil works business with approximately 10 workers.

The defendant was charged under section 32 of the Work Health and Safety Act 2011 (WHS Act) with failing to comply with its primary duty of care under section 19(1), thereby exposing Mr Howarth and Mr Nix to a risk of death or serious injury (a category 2 offence). While the defendant admitted that it was a person conducting a business or undertaking and owed a health and safety duty, it contested whether it had failed to comply with that duty and whether any such failure exposed workers to the pleaded risk.

The evidence revealed that shoring boxes had been used at the site on previous days, but at the time of the collapse, Mr Hammond, the working director responsible for day-to-day safety management, was in the process of preparing the shoring boxes for installation when the workers entered the trench to take measurements. Despite being aware that workers had been entering and exiting the trench during the morning, no specific instruction was given prohibiting them from doing so before the shoring was in place.

Her Honour's judgment provides a comprehensive summary of the legal framework governing work health and safety prosecutions and plainly sets out the Court’s role as a tribunal of both fact and law.

Central to the judgment was the Court's consideration of the concept of "risk" under the WHS Act, confirming that risk means the mere possibility of danger, not necessarily actual danger. Critically, safety cannot be ensured if a risk to health and safety exists, and it is the existence of the risk, not the occurrence of an accident, that constitutes a breach.

The Court also undertook a detailed analysis of "reasonably practicable" under section 18 of the WHS Act, weighing the likelihood of the hazard occurring, the degree of potential harm, the defendant's knowledge of the risk and available control measures, and the cost of implementing those measures. Importantly, Her Honour emphasised that the state of knowledge applied is objective, possessed by persons generally engaged in the relevant field, not the actual knowledge of the specific defendant.

The judgment reinforces established principles that duty holders must adopt a proactive approach to safety, applying a structured and systematic approach to risk management. Furthermore, duty holders must have regard not only for the ideal worker but also for workers who may be careless, inattentive or inadvertent.

In determining causation, the Court applied the principle that the defendant's act or omission must be a significant or substantial cause of the worker being exposed to the risk of injury, determined by the application of common sense to the facts.

In applying these principles, the Court addressed the pleaded failings measure by measure, element by element and sub-element.

The judgment exemplifies a reasoned approach which we expect the Industrial Court will take in defended hearings going forward. Her Honour carefully assessed each witness's credibility, accepting some evidence while rejecting other parts where inconsistencies arose. The Court declined to draw adverse inferences without sufficient evidentiary foundation, notably refusing to infer that spoil positioned near the trench contributed to the collapse absent expert evidence.

Significantly, while finding the defendant guilty on the basis that it failed to prohibit workers from entering the unsecured trench, the Court was not satisfied beyond reasonable doubt that certain other particulars of breach were established.

This judgment provides for a familiar feel to that of the District Court when establishing guilt for work health and safety matters and provides useful guidance in the standard of evidence the regulator needs in order to prove the elements of the offence.

The decision also serves as an important reminder that proactive safety management, clear worker instructions, and proper implementation of documented safety procedures remain fundamental obligations under the WHS Act.