On 24 March 2022, a worker was manually closing a large steel gate when the gate has overran the end vertical support and fell onto the worker causing a number of fractures and serious injuries. The worker was trapped under the gate for a number of minutes before workers from across the road utilised a forklift to lift the gate off him.

The entrance to the work site at Seven Hills in Western Sydney NSW, contained two large metal sliding industrial gates, where each gate was approximately 11 metres long, 1.9 metres high and weighed 800 kilograms. In June 2020, a truck reversed into one gate damaging the electric motor and sensor, such that the gates could not be operated electronically.

From June 2020 to March 2022, the gates were operated manually by the workers to open and close each day. Covid lock downs were in place during 2020 and were lifted in October 2021. No steps were taken to repair the gates from October 2021 to March 2022.

Safework NSW conducted an investigation and commenced prosecutions against two companies operating at the work site, and Mr Mytkowski as an Officer of both of the companies, for breaches of section 32 of the Work Health and Safety Act of NSW (WHS Act). All three defendants entered pleas of guilty but contested a number of factual matters before the District Court of NSW.

On the 8 April 2026, the District Court found that Mr Mytkowski, as an Officer and person who managed the businesses at the work site, was aware of the damage to the powered gate system and that workers would manually open and close the gates each day.

The Court found a number of failings against the two operating companies, in failing to take reasonably practicable steps to conduct a risk assessment, implement a safe work procedure to manually operate the gates, and failures to implement supervision, training, instruction or information in the safe manual operation of the gates.

The findings of facts against Mr Mytkowski, in his two breaches of section 27(5) of the WHS Act, determined that:

• he did not keep an up-to-date knowledge of work health and safety matters in the safe operation of the gates at the site;
• he did not obtain an up-to-date copy of the manufacturer’s manual for 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; and
• he did not obtain a risk assessment from a competent person associated with the operation of the gates following the truck collision.

The Court held that:

• a director must exercise due diligence to take reasonable steps to have the company:
  • become informed about the hazards and risk;
  • conduct risk assessments; and
  • inspect plant and ascertain that it is safe.

Further, that Court stated that:

‘Due diligence includes verifying that resources and processes have been provided to and used by the company‘.

Both companies and Mr Mytkowski have been adjourned to 12 August 2026 for a sentence hearing to determine penalties to be imposed.

This article was written by Greg McCann, Partner.