McColm (Department of Regional NSW) v Tucker [2025] NSWDC 199

Introduction

On 3 June 2025, the District Court of New South Wales (the Court) found that Robert John Tucker (Tucker) was guilty of a criminal offence in breach of section 32 of the Work Health and Safety Act 2011 (NSW) (the Act). The prosecution for the offence arose through Tucker’s failure to comply with work health and safety obligations imposed by section 28(b) of the Act in that he exposed Matthew Richens to a risk of death or serious injury.

Section 28(b) of the Act imposes a duty on a worker to, among other things, “…take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons…”

A person commits an offence under section 32 of the Act if the following elements are met:

1. the person has a health and safety duty, and
2. the person fails to comply with that duty, and
3. the failure exposes an individual to a risk of death or serious injury or illness.

The maximum penalty for an offence under section 32 of the Act for an individual other than a person conducting a business or undertaking or an officer of a person conducting a business or undertaking is 1,813 penalty units, which is currently approximately $220,000.

The Background and Key Facts of the Case

Both Tucker and Richens worked at the West Wyalong Quarry operated by Regional Quarries Australia Pty Ltd (the Quarry). The Quarry is an open cut hard rock mine which extracted material from a crush pit at the Quarry. A second new crush pit was under construction and both pits were approximately parallel to each other for over 100m. There was a gap between the two pits of approximately 25-35m wide which was used as a traffic thoroughfare. Workers regularly worked on foot in the vicinity and occasionally traversed the gap between the two pits.

Tucker was the workshop manager, and he was responsible for supervising welders, including Richens, and the work carried out in the workshop. He also held a heavy vehicle drivers’ licence and was trained on safe work methods, including, among other things, light vehicle operations.

On 24 May 2021, Tucker drove Richens from near the entrance to the Quarry to the new crush pit which was being constructed and near to where Richens was to carry out welding works. Richens got out of the vehicle and walked about 10m away where he crouched down to pick up items that had been left on the ground. At the same time, Tucker also alighted from the vehicle and spoke to workers about certain works to be carried out before Tucker got back into the vehicle and did a U-turn towards the left. As he completed the hard left turn to do the U-turn, Tucker’s vehicle collided with Richens who was still crouched down with his back to the vehicle. The vehicle hit Richens in the back and drove over him before Tucker stopped a short distance away. Richens stood up briefly before collapsing to the ground where he subsequently died at the scene.

Evidence and the Court’s Considerations

The Court heard evidence from several witnesses, and the incident was captured on surveillance video.

Tucker admitted that he did owe a duty pursuant to section 28 of the Act. In light of that duty, the Court then had to consider the following issues:

1.  Did Tucker fail to comply with his health and safety duty by failing to take steps to:
   a. keep a proper lookout as the driver of a vehicle;
   b. activate the vehicle’s amber flashing warning lights?
   
   
2. If yes to 1., did Tucker’s failures expose Richens to a risk of death or serious injury?

The Court acknowledged that Richens’ actions in remaining crouched in one position was unusual and that Tucker would not have expected him to be there. The Court also accepted that Tucker did not see Richens.

Case Outcome

In relation to the failure to keep a proper lookout for workers on foot, the Court held that Tucker knew or ought to have known that there were workers on foot in the vicinity. He had driven Richens there and had interacted with other workers in the area, all of whom were on foot.

Tucker had also been involved in the preparation of the Safe Work Method Statement (SWMS) relating to construction of the new pit and he had been trained on the SWMS relating to the operation of light vehicles at the Quarry. As a result, he knew about the risks and what control measures were put in place to avoid the risk of collisions between vehicles and pedestrians. He was employed as a supervisor and had responsibility for enforcing safe work practices. As an experienced licensed driver, he was aware of the need to keep a proper lookout and to operate amber flashing lights.

The Court was satisfied that Tucker could have and should have seen Richens before getting back into his vehicle and from the driver’s seat before driving, and that in executing a hard left turn while moving forward would result in a blind spot near the front left-hand corner of the vehicle. The Court, in taking into account all the evidence and the circumstances, held that Tucker failed to keep a proper lookout for pedestrians and breached the duty he owed. The failure to keep a proper lookout was a significant and substantial cause of the collision which exposed Richens to a risk of death or serious injury.

The Court also found that Tucker had failed to activate the amber flashing lights and as a result failed to follow a simple, convenient and well-known safety rule at the Quarry. However, the Court was not satisfied beyond a reasonable doubt that the failure to activate the amber flashing lights was causative of the risk of death or serious injury to Richens. At all times Richens had his back to the vehicle and would not have been able to see the flashing lights had they been on and enable him to take evasive action.

The Court was satisfied beyond reasonable doubt that the prosecution had proved the elements of the offence in section 32 of the Act and consequently, found Tucker guilty.

At the time of publication, sentencing which had been listed for a later date, had not occurred.

Compliance Impact

Organisations should ensure that there is appropriate training and compliance in relation to work health and safety obligations and that policies and procedures reflect this. Training should ensure that workers are made aware that while they are at work they owe a duty to, among other things, take reasonable care that the worker’s acts or omissions do not adversely affect the health and safety of other persons. Compliance with policies and procedures and reasonable instructions by the person conducting the business or undertaking must also be enforced.