Prime Marble & Granite Pty Ltd v Safework NSW

1. [1]

   HARRISON CJ at CL: Prime Marble & Granite Pty Ltd applies pursuant to s 5F(3) of the Criminal Appeal Act 1912 for leave to appeal from an interlocutory decision of his Honour Russell SC DCJ declining to dismiss two summonses against it upon the basis that they were not filed within the two year period prescribed by s 232 of the Work Health & Safety Act 2011 (NSW) (“the Act”): see SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17. It is not in contest that an appeal against the decision lies to this Court subject to the grant of leave as required by s 5F(3)(a): Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93.

2. [2]

   Section 232 is in the following relevant terms:

The alleged offences

1. [3]

   The alleged offences in question are those for which s 32 of the Act provides. It is as follows:

2. [4]

   The relevant duty is prescribed by s 19 of the Act:

3. [5]

   The summons in each case was filed on 30 March 2023. Each summons alleges that Prime Marble had a duty under s 19(1) of the Act to ensure as far as was reasonably practicable the health and safety of its workers and that it failed to comply with that duty. Each summons alleges, in cognate terms, that Prime Marble’s failure to comply with the relevant duty exposed Mr Zhang and Mr Geng to a risk of death or serious injury contrary to that section.

4. [6]

   Prime Marble does not suggest that the elements in s 32(a) and (b) did not come to the notice of SafeWork within two years after the alleged offences first came to its notice. The present contest instead focusses upon the s 32(c) issue of what is contemplated by the phrase “exposes an individual to a risk”: when did SafeWork first have notice that Prime Marble’s breach of its admitted duty (“the failure”) exposed an individual to a risk of death or serious injury?

Background facts

1. [7]

   Prime Marble’s submissions contained the following summary of the background facts.

2. [8]

   Inspector Seneviratne of SafeWork’s Hygiene & Toxicology Team attended Prime Marble’s premises at 42 Rosedale Avenue, Greenacre on 30 August 2017, in order to measure workers’ exposure to respirable crystalline silica dust as part of its Silica Project, which contained a field component of personal air monitoring of workers for RCS dust, to research worker exposures at high-risk industries. Personal monitoring of six of Prime Marble’s workers showed that exposure to airborne RCS for five of those workers that day was between 2.1 and 7.5 times higher than the regulated Australian Workplace Exposure Standard of 0.1 mg/m³ based upon an eight hour time-weighted average. This is confirmed in Inspector Seneviratne and Shankar’s Workplace Hygiene Monitoring Report dated 20 November 2017. That report noted stone benchtop making tasks can expose workers to high amounts of RCS, and that workers who inhale very small RCS particles are at risk of serious lung diseases such as silicosis, chronic obstructive pulmonary disease, kidney disease and lung cancer. The report said this:

3. [9]

   The report noted that Prime Marble was in breach of the (then in-force) Work Health and Safety Regulation 2011, by exposing workers to RCS above the applicable exposure standard of 0.1mg/m³. Presumably this was a reference to reg 49, which provided that ‘a person conducting a business or undertaking at a workplace must ensure that no person at the workplace is exposed to a substance or mixture in an airborne concentration that exceeds the exposure standard for the substance of mixture’. The maximum penalty for breach of the regulation is a fine of $30,000.

4. [10]

   As a result of the air monitoring conducted by Inspector Seneviratne at Prime Marble’s premises in August 2017, he recommended that it undertake health monitoring for workers with significant exposure to crystalline silica.

5. [11]

   On 20 April 2018, SafeWork issued Prime Marble with an Improvement Notice setting out a contravention of s 19 of the Act and cl 368 of the Work Health & Safety Regulation 2017, that occurred on 16 March 2018, as follows:

6. [12]

   In the same notice, Prime Marble was directed to comply with the health monitoring mandated by Schedule 14 of the Work Health & Safety Regulation 2017, which refers to crystalline silica and requires, among other things, a standardised respiratory function test to be conducted.

7. [13]

   Mr Zhang, who died on 17 June 2020, commenced employment in or about 2012 and worked as a full-time machine operator. Mr Geng, who died on 19 May 2020, commenced employment with Prime Marble in or about February 2015 cutting, grinding and shaping marble, granite and manufactured stone products.

8. [14]

   Although both Mr Zhang and Mr Geng worked for Prime Marble in 2017-2018, SafeWork did not become aware of the existence of Mr Zhang before the receipt of a NSW Ministry of Health Silicosis Notification on 3 February 2021 that indicated that he had died. SafeWork did not become aware of the existence of Mr Geng until it received iCare documentation regarding him sent by email on 17 May 2021.

Evidence

1. [15]

   It is convenient next to record his Honour’s recitation of the evidence upon which SafeWork relied:

2. [16]

   His Honour made it clear that the test with which s 232(1)(a) was concerned involved the question of when the regulator became aware of the “offence”:

Prime Marble’s submissions

1. [17]

   Section 232(1)(a) of the Act requires a factual determination: SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 at [22] per Russell SC DCJ. The question is whether the offence came to the notice of SafeWork more than two years before the proceedings were commenced by summons on 30 March 2023. If they were, the proceedings are an abuse of process. SafeWork bears the onus of establishing that the proceedings were brought within time: Cumberland Council v Younan [2018] NSWLEC 145 at [57] per Robson J; M & S Investments (NSW) Pty Ltd v Affordable Demolitions & Excavations Pty Ltd [2023] NSWLEC 65 at [56] per Pepper J.

2. [18]

   An offence first comes to the notice of the regulator when it has information sufficient to give reasonable grounds for a belief that the offence has been committed: Witheyman v Van Riet (2008) 185 A Crim R 492; [2008] QCA 168 at [8]-[9]. It is not necessary that the regulator was actually in possession of evidence capable of indicating that the offence had been committed, although possession of evidence will be sufficient to establish the reasonable grounds test. Reasonable grounds requires the existence of facts which are sufficient to induce a belief in the existence of those grounds in a reasonable person: George v Rocket (1990) 170 CLR 104; [1990] HCA 26 at 112. It is not necessary for the person actually to hold the belief.

3. [19]

   It is not necessary for the regulator to have notice of the identity of the offender: Witheyman at [15]; Somerville at [63]. Nor is it necessary, in the context of the prosecution of an offence contrary to s 32 of the Act, for the regulator to have notice of the identity of any particular worker put at risk of serious illness because of a breach of the duty under s 19(1) of the Act.

4. [20]

   In order to have notice of an offence, the regulator must have information as to both the essential legal elements and the essential factual particulars of that offence. The essential legal elements of an offence contrary to s 32 of the Act are set out above at [3]. No essential factual particulars attach to the first element concerned with the legal duty imposed by s 19(1) of the Act. The essential factual particulars attaching to the second legal element are contained at [15] of Annexure A to each of the summonses, and include an asserted failure on the part of Prime Marble to develop, implement and enforce a safe work system for the production of the generation of airborne RCS while cutting manufactured stone products.

5. [21]

   Prime Marble has accepted that the evidence in this case establishes that SafeWork, on a date earlier than 30 March 2021, had notice of the first two elements of the offences charged, as well as the essential factual particulars attaching to the second element, namely that Prime Marble had a health and safety duty and that there had been a failure to comply with that duty by failing to develop, implement and enforce a safe work system for the production of the generation of airborne RCS.

6. [22]

   As Prime Marble’s submissions make plain, the third element is the contentious element. Clearly in November 2017, SafeWork had notice that the individual workers referred to in the Workplace Hygiene Monitoring Report were exposed to the risk of serious lung disease, but the primary judge determined that it was the identification of Mr Zhang and Mr Geng and the information received in 2021 in respect of them which ultimately then gave the regulator notice of the offences: judgment at [50]. Prime Marble submitted that this was an error: it was not necessary for SafeWork to be aware of the existence of those particular individuals exposed to the risk in this case in order to have notice of the offence. Prime Marble submitted that once the regulator had notice that any worker or workers were subject to the relevant risk in breach of the legal duty imposed by s 19(1), SafeWork was on notice of the offence pleaded in the summons. In other words, each offence charged is exactly the same offence as that allegedly being committed in 2017. In the circumstances of this case, the identification of Mr Zhang or Mr Geng was not an essential ingredient of the offence of which the regulator required notice or information before the proceedings could be brought.

7. [23]

   The question of particularisation, and whether particulars are essential factual elements, is really a question of interpreting the offence-creating provision with a view to identifying what the prosecution needs to prove. The classification of a factual assertion by the prosecution as an element at one end of the spectrum, a mere fact at the other end of the spectrum, and an essential fact perhaps somewhere in between, permits of no bright lines: Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 at [72], per Button J. No single test can sensibly be applied to all cases. The task should be approached, not by employing some verbal formula, but by having regard to the nature of the offence in question and the particular facts and circumstances of the case: Director of Public Prosecutions (Cth) v Citigroup Global Markets Australia Pty Ltd (No 1 Indictment) [2021] FCA 757 at [94]. The rationale for the requirement of particularisation is seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [26].

8. [24]

   Unlike cases where the offending attaches to conduct directed towards an individual, the gravamen of an offence contrary to s 32 of the Act is not concerned with to whom that conduct is directed. Rather, it is the failure to do something, which creates a risk. It is the creation of that risk, and any worker being exposed to it, which establishes the offence. The criminality focuses on the exposure of an individual to the relevant risk by reason of the failure to comply with the relevant duty rather than on the identification of that individual. This is why there are examples of prosecutions for offences contrary to s 32 of the Act where multiple workers are pleaded in a single offence, something that would, for example, be impermissible when prosecuting a defendant for an assault or murder: see, for example, Safework NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131 (three workers); McColm v Hamilton Blasting Services Pty Ltd; McColm v Hamilton [2021] NSWDC 688 (11 workers relating to a single incident which occurred on 10 April 2018). In each of those cases, it would have been no answer to the charge to establish that one or more workers were not exposed to the relevant risk, if the prosecution was nonetheless able to establish another worker or workers were so exposed.

9. [25]

   Prime Marble emphasised that one of the objects of the Act is to protect workers against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3(1)(a). Viewing s 32 through the prism of that object, the precise identity of who was exposed to the relevant risk is not the gravamen of the offence. Rather, it is the risk of harm that the defendant’s failure has caused. It is not necessary that harm has already befallen a worker for an offence to have been committed: Kirk at [13]; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [22]. “Risk” means the mere possibility of danger, and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171; Abigroup Contractors Pty Ltd v WorkCover Authority (NSW) (2004) 135 IR 317; [2004] NSWIRComm 270. The word “exposes” merely refers to a person who was sufficiently proximate to the risk at the relevant time for the risk possibly to impinge upon the person’s safety: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37 at [123].

10. [26]

    In this case, SafeWork was aware of the existence of multiple individuals exposed to precisely the same risks pleaded in the two charges from 20 November 2017, when the Workplace Hygiene Monitoring Report was prepared. In these circumstances, lack of awareness of the existence of any particular individual exposed to the risk of death or serious injury resulting from or caused by Prime Marble’s alleged failure to comply with the duty under s 19(1), at that time, did not mean that SafeWork did not have notice of the offence. If the proceedings had been commenced within two years of 20 November 2017, provided the prosecution could have established that at least one worker was exposed to the relevant risk, that would have been sufficient. The way the prosecution decides to plead its case for a particular offence does not answer the question of when that offence first came to its notice.

11. [27]

    By determining that the proceedings were commenced within time having regard to when SafeWork became aware of the existence of Mr Zhang and Mr Geng, the primary judge was in error. The charge pleaded in each summons is the same offence of which SafeWork had notice in 2017.

SafeWork’s submissions

1. [28]

   SafeWork submitted that the proper interpretation of s 232(1)(a) requires no more than a plain reading of its text. What is required for an offence to come to the notice of the regulator is not the same as notice of an incident or an injury. It requires that the regulator must be in possession of material or information with probative value capable of establishing an objective basis for the formation of a reasonable belief that all of the elements of an offence could be established.

2. [29]

   In Somerville, the relevant provision in the National Parks and Wildlife Act 1974 was in similar terms to s 232:

3. [30]

   This Court in Somerville applied the following principles with respect to the determination of the question of when the offence first came to notice of the regulator:

4. [31]

   Contrary to Prime Marble’s submissions, SafeWork submitted that, while proceedings for offences are “risk based” prosecutions, it is still necessary to identify the individual or individuals, such as Mr Zhang and Mr Geng, whose health and safety is said to have been exposed to the pleaded risk.

His Honour’s reasoning

1. [32]

   His Honour dealt with the requirement concerning notice of the offence in the following terms:

Consideration

1. [33]

   For the purposes of determining whether proceedings have been commenced within time in accordance with s 232(1)(a), the relevant inquiry must be directed to the question of when the regulator first gets notice of the offence alleged in the summons commencing the proceedings. The s 32 offence will be complete when the alleged failure exposes an individual to a risk of death or serious injury or illness. The offence is not complete only when it can be said that some particular consequence or particular result caused by the alleged exposure comes to the notice of the regulator. The ordinary English meaning of the words in the section is that the offence is complete when the regulator has notice of the risk that is alleged to be associated with the exposure.

2. [34]

   It can be accepted that his Honour’s observation, that exposure on a single day will not cause silicosis, is correct. However, proof that the exposure has caused such a serious injury or illness, or that death has resulted, is beside the point for the purpose of determining when time begins to run. In the present case, nominating the date from which the limitation period commences focuses attention upon s 32(c) of the Act. That section is not concerned with the question of whether or not the risk has materialised in the sense that the exposure leads, or has led, to death or serious injury or illness or whether the regulator can prove any of these things in due course. Section 32(c) refers to a failure which exposes an individual to a risk of death or serious injury or illness, not to a failure which causes death or serious injury or illness.

3. [35]

   It is reasonably apparent from the terms of the provision creating the offence, that its aim or purpose is the prevention of death or serious injury or illness. If it were otherwise, it might be expected that s 32(c) would not refer to a failure which exposes an individual to a risk but instead to a failure that causes death etc. Focusing on the risk necessarily brings forward the time at which the offence will have been committed and, relevantly in this case, the date on which the regulator had notice for the purpose of the limitation period in s 232(1)(a). This is consistent with the object of the Act in s 3 “to secure the health and safety of workers and workplaces”.

4. [36]

   Each party to this appeal referred to the decision of this Court in Grasso. That case was also concerned with s 32 of the Act. Walton J helpfully recited the principles that are under scrutiny in the present appeal:

5. [37]

   The same issue was considered by Walton J in Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 at [157]-[161] as follows:

6. [38]

   Counsel for SafeWork made the following submission:

7. [39]

   With respect, this analysis misunderstands the reference by his Honour to “causation”. Paragraph [99] of Grasso is in these terms:

8. [40]

   It seems to me to be fairly clear that his Honour was there discussing the issue of whether the prosecution was able to prove a causal connection between the alleged breach and exposure of an individual to a risk of death or serious injury or illness. In simple terms, by way of example, proof that an individual died of silicosis after exposure to silica dust at the defendant’s factory might establish causation in the sense of consummating the offence. That is an entirely different issue to whether, when considering when the regulator first has notice of the risk of death or serious injury or illness, it must be shown that the risk had by then materialised in the sense that it caused those things. The third element of s 32 may be understood as the causation element in establishing the commission of the offence in the way in which Cavanagh J was considering it. In contrast, for the purposes of s 232(1)(a) of the Act, the two year period runs from the time when the regulator has, among other things (viz. s 32(a) and (b)) notice of the risk that might materialise, not that it has done so. The issue of causation considered by Cavanagh J has nothing to say about when notice of the unmaterialised risk first comes to the notice of the regulator.

9. [41]

   For these reasons, I reject the reasoning adopted in written submissions relied upon by SafeWork in this Court as follows:

10. [42]

    The issue in this Court is when the limitation period begins to run. That issue calls for identification of the date when SafeWork had notice of the risk of death or serious injury or illness to which an individual has been exposed by reason of the failure to comply with the relevant duty. It is not concerned, like the above submissions, with the need for SafeWork to establish all of the essential legal elements of the offence in the course of a prosecution for an alleged breach of s 32.

11. [43]

    At [60] of his careful judgment, Russell SC DCJ said that the information obtained in 2017 and 2018 gave SafeWork no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty. Although it may be accepted for the purposes of the argument that his Honour’s conclusion is correct, and that SafeWork did not learn about Mr Zhang or Mr Geng until sometime within a period of two years before the summonses commencing the prosecutions were filed, it is irrelevant. Putting aside the question of whether the identification of these workers amounts to an element of the charged offences or only particulars of the offences, SafeWork’s notice of the existence or condition of these men is not coextensive with whether SafeWork had notice that an individual had been exposed to the relevant risk.

12. [44]

    The discussion in Grasso, set out above, included a reference to the decision of the High Court of Australia in Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Prime Marble relies upon this authority and, in particular, what the majority said at [12]-[14] as follows:

13. [45]

    At [83] of its written submissions in this Court, SafeWork said this:

14. [46]

    It will be apparent that this submission is really directed to proof of the commission of the offences. It is inapposite in my view as a submission concerning when SafeWork first had notice of the offence. It is clear from Kirk and Grasso that the reference to “the offence” in s 232(1)(a) must be a reference to an alleged offence. In this case, the offence is one allegedly in contravention of s 32 of the Act, and one of the elements of that offence is the exposure of “an individual to a risk of death or serious injury or illness”. When SafeWork has notice of the elements of the offence, the two-year period for the purposes of s 232(1)(a) commences.

15. [47]

    SafeWork’s submissions in this Court supported the correctness of his Honour’s decision and in so doing adopted the significance placed by his Honour on SafeWork’s knowledge, or lack of knowledge, of Mr Zhang and Mr Geng. Understandably in those circumstances, Safework did not address the different question of whether it had notice of the risk to which s 32(c) refers by reason of the matters that were drawn to its attention in Inspector Seneviratne and Shankar’s Workplace Hygiene Monitoring Report dated 20 November 2017. In other words, SafeWork did not deal with the significance of the fact that it had notice of the conditions observed and noted by the inspectors concerning air quality standards that “the personal air monitoring results indicate that all workers doing polishing tasks at Prime Marble & Granite are exposed to RCS dust concentrations well above the current Australian WES”.

16. [48]

    I consider that the existence of knowledge on the part of SafeWork of these dust concentrations must necessarily equate to notice of exposure of Prime Marble’s workers to the relevant risk. It must follow that the summons in each case was filed more than two years after such notice was received. His Honour’s decision that notice is dependent on knowledge of Mr Zhang and Mr Geng is an error of principle. The continuation of the proceedings is therefore an abuse of process. In these circumstances, I would make the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Vacate the orders made in the District Court on 13 February 2024 and, in lieu thereof, order that summons 2023/103537 and summons 2023/103574 be dismissed.

17. [49]

    HAMILL J: I have read the draft judgments of Harrison CJ at CL and N Adams J. I agree with the orders proposed by their Honours. I agree with the reasons provided by the Chief Judge and with the additional observations of N Adams J at [54] – [60]. As to the standard of review discussed by N Adams J at [51] – [53], I am inclined to agree with her Honour that the so-called “correctness” standard applies. However, as her Honour observes, in the circumstances of this case, the result will be the same whatever standard of review is adopted.

18. [50]

    N ADAMS J: I agree with Harrison CJ at CL for the reasons provided by his Honour. I wish to provide some additional reasons in relation to two aspects of this appeal; namely, the relevant standard of appellate review, and when it is that an “offence first comes to the notice of the regulator” for the purposes of s 232(1)(a) of the Work Health & Safety Act 2011 (NSW) (“the WHS Act”).

19. [51]

    The applicant submitted that the standard of appellate review for this interlocutory appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) was the “correctness” standard based on the recent decision in Koschier v R [2024] NSWCCA 24 (“Koschier”). That appeal concerned a decision refusing an application to permanently stay criminal proceedings. Bell CJ (with whom Harrison CJ at CL and Chen J agreed) noted the previous line of authority in this Court describing such a decision as discretionary in nature, requiring “House” error to be established (House v The King (1936) 55 CLR 499; [1936] HCA 40), but held that, following the decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, such a decision can no longer be considered to be discretionary and the correctness standard applies: at [33]-[34].

20. [52]

    The respondent’s ultimate position at the hearing of this appeal was that although it would be open to find that House error needed to be established, it was accepted that the decision under appeal was a binary one and that it “may well be that the correctness standard is the applicable standard.” [1] The respondent’s position was that whatever standard applied there was no error in the decision of the primary judge.

21. [53]

    For my part, I am satisfied that the decision under appeal is of the same character as a decision whether to grant a stay in that there are only two possible outcomes. Further, the outcome in the decision under appeal concerned the construction of ss 32 and 232 of the WHS Act and was not evaluative in nature. Accordingly, I am satisfied that the correctness standard applies. Such an appeal is by way of rehearing: Koschier at [35]. However, given the way in which the appeal was argued, nothing really turns on this for the purposes of the present appeal and I would have been satisfied that leave should be granted and the appeal upheld had the applicant been required to establish House error in any event.

22. [54]

    Turning to the second matter, the statutory time limit in s 232(1)(a) of the WHS Act commences within two years after the “offence first comes to the notice of the regulator”. As for what is required before it can be said that an “offence” has come to the “notice” of the regulator for the purposes of s 232 (1)(a), the primary judge applied the test endorsed in Witheyman v Van Riet [2008] 2 Qd R 587; [2008] QCA 168; (2008) 185 A Crim R 492 (“Witheyman”). In Witheyman, the statutory time limit was in the Vegetation Management Act 1999 (Qld) and was, relevantly, expressed as “within 1 year after the offence comes to the complainant’s knowledge ….”. The Queensland Court of Appeal confirmed the construction applied by both the magistrate and then the District Court judge; namely, that “knowledge” in that context was when the complainant had such information as to give reasonable grounds for a belief that the offence has been committed: at [8]-[9].

23. [55]

    In applying this test, the primary judge found that the information obtained in 2017 and 2018 gave the regulator “no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty”: see SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17 at [50].

24. [56]

    In the present appeal, rather than accepting the applicant’s submission that the test is that stated in Witheyman, the respondent instead relied on the decision of this Court in Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93 (“Somerville”) for the relevant test. That decision concerned s 190(1)(b) of the National Parks and Wildlife Act 1974 (NSW), which was in slightly different terms to s 232. Section 190(1)(b) provides that proceedings for an offence under that Act or regulations may be commenced “within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer”. In that statutory context, Adamson J (as her Honour then was) (with whom Johnson and Bellew JJ agreed) observed at [62] that a conclusion that the investigator had reasonable grounds to believe that the offences had been committed (for the purposes of the execution of the search warrant in that matter), did not necessarily mean that evidence of the alleged offences had come to the investigator’s attention for the purposes of s 190(1)(b). I am satisfied that the different statutory language in Somerville explains this distinction drawn by her Honour and that Somerville is not otherwise inconsistent with the decision in Witheyman which her Honour also refers to at [63]. Accordingly, to the extent that there was no clear agreement between the parties on this issue, I am satisfied that the relevant test is as stated in Witheyman.

25. [57]

    Applying that test to the facts in this appeal, it was common ground that on 30 August 2017 an Inspector of the regulator tested the exposure of workers on duty that day to respirable crystalline silica (“RCS”) dust which led him to opine that the workers “may be at risk of serious health effects if not adequately protected”. The question is whether at that time the regulator had reasonable grounds to believe that the “offence” had been committed.

26. [58]

    The primary judge observed at [57]-[59] that silicosis is an accumulative disease and that exposure on one day will not cause silicosis. His Honour relied on this evidence in support of his finding that the regulator had no information on 30 August 2017 of an offence exposing either of the two workers specified in the summonses to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty. The difficulty with this conclusion is that it overlooks the work to be done by the word “risk” in s 32(c) of the WHS Act.

27. [59]

    As was noted by Basten JA (with whom Beazley JA and Wilson J agreed) in Unity Pty Ltd v Safework NSW [2018] NSWCCA 266 at [55], prosecutions of this nature are rarely if ever brought unless there has in fact been a serious injury or death. It is no doubt easier to establish the relevant risk for the purposes of s 32(c) if that risk has already materialised but as Walton J (with whom Beech-Jones CJ at CL and McNaughton J) observed in Saunders Civilbuild Pty Ltd v Safework NSW [2023] NSWCCA 261 at [157], s 32 of the WHS Act is directed at the risk to health and safety and is not dependent upon the manifestation of that risk. So much is apparent from the terms of s 32(c) itself.

28. [60]

    In the present case, the regulator had reasonable grounds as of 30 August 2017 for a belief that one or more individuals were being exposed to a risk of death or serious injury or illness by exposure to RCS dust. That is when the two-year limitation period commenced for the purposes of s 232 of the WHS Act.