The court found the manual handling policy was not in practical operation
A NSW Supreme Court has found a steel manufacturer liable for a contractor's workplace injury, despite having written safety policies in place.
The decision, handed down on 9 April 2026, involved a Silverwater steel factory, a chain of labour hire companies, a heavy metal plate, and a safety induction that never actually happened the way it was intended.
Sungchell Gong, a North Korean-born boilermaker, was working at AWI Steel's factory on 12 April 2021 when a heavy steel plate fell on his foot as he tried to manually flip it. He was treated at hospital and discharged the same day. But he never returned to work. Over the months that followed, he developed complex regional pain syndrome, a depressive condition, and what the court accepted was post-traumatic stress disorder.
Mr Gong was not an AWI Steel employee. He worked through a chain of arrangements: his own company, Gong Engineering, contracted his services to Ebenezer Engineering, which in turn supplied workers to AWI's factory. By the time the case was heard, Ebenezer no longer operated and no orders were sought against it. AWI argued that responsibility for inducting and supervising the workers Ebenezer had supplied rested with Ebenezer.
Schmidt AJ rejected that argument. The court found that AWI's manager, Mr La Rosa, directly supervised all work, controlled use of the crane, and communicated instructions to Korean-speaking workers through a bilingual supervisor, Mr Gim. AWI had retained practical day-to-day control over every worker on the floor, regardless of how the contracts were structured on paper.
AWI also brought a cross-claim against Gong Engineering, alleging it bore some responsibility as Mr Gong's employer. The court rejected this, finding that given AWI's complete practical control over the work and the short time Mr Gong had been at the factory before he was injured, there had been no opportunity for Gong Engineering to have acted to prevent the breach.
The induction process sat at the heart of the case. Mr Gim, who had no formal safety training, was responsible for inducting Korean-speaking workers using a document he had translated with the assistance of AI. He acknowledged in cross-examination that he had not fully understood parts of the document, and had only translated the sections he considered important. AWI had never verified what the Korean version actually said.
The court found that AWI did not have a safe system of work in operation at its factory and that Mr Gong was never told about AWI's manual handling policy or weight limits for manual lifts. AWI also never investigated the cause of Mr Gong's accident beyond speaking to Mr Gim.
Multiple workers gave evidence that Mr Gim regularly pressured staff to perform heavy manual lifts rather than wait for the crane, threatening dismissal if they refused. The workers had raised concerns with AWI managers about Mr Gim's authority to direct and dismiss them, though whether they had ever complained specifically about his behaviour was disputed. The court accepted Mr Gong's account that Mr Gim told him: "Look, we don't have time to wait for the crane. If you don't do it manually, I'll have to send you home." Mr Gim denied this.
Mr Gong was found 25 per cent contributorily negligent, as an experienced tradesman who recognised the lift was unsafe. AWI bore the greater share of responsibility.
On damages, the court accepted past economic loss of $373,200 and past out-of-pocket expenses of $208,875.51. A future medical expenses buffer of $150,000 was also accepted, as was non-economic loss assessed at 40 per cent of a most serious case. Critically, the court further found that Mr Gong has no future earning capacity, rejecting AWI's submission that he retained a residual capacity for sedentary work, with the future economic loss component yet to be calculated. The court did not award future domestic assistance damages, finding Mr Gong had not established the required evidentiary basis for that claim. Additional calculations, including a gross-up for income tax and superannuation, were noted as still to be finalised, and the parties were directed to confer on the final form of orders within 14 days of the decision.
After the accident, AWI installed a second crane and began providing Korean-language written summaries of toolbox meetings after each session. The court noted these measures were absent when Mr Gong was injured.
The decision establishes that operational control creates legal responsibility, regardless of how labour arrangements are structured on paper. A manual handling policy posted on factory walls, but not practically communicated to the workers it was meant to govern, was found insufficient. The court also found that AI-assisted translation of compliance documents, without any verification of accuracy, did not satisfy the duty to properly inform workers.
