Citation: WorkCover v Allworth Constructions Pty Ltd [2014] NSWDC 184
Court: District Court of NSW
Date: 27 August 2014
Judge(s): Curtis J
Background
The defendant, a residential building company with 35 years of operation, was engaged to construct a house at Harrington Grove. On 2 September 2011, a crane operator attended the site to make a delivery and ascended to the first floor to obtain a signature from subcontractor carpenters working there. While briefly assisting the carpenters, he stepped back and fell through an unguarded void in the floor, suffering catastrophic injuries including severe brain damage.
The site supervisor, employed by the defendant, had inspected the site that morning and recorded in a risk assessment that all four zones around the void were unprotected and that no penetration protection system had been installed. Despite this, he left the site without requiring a safe work method statement from the subcontractors or directing that any temporary barrier be erected around the void.
The defendant pleaded guilty to a charge under section 8(2) of the Occupational Health and Safety Act 2000, which prohibits conduct that exposes non-employees to risks to their health. The proceedings before Curtis J concerned the appropriate penalty.
Legal Issues
- What was the objective gravity of the offence, having regard to the foreseeability and magnitude of the risk and the severity of harm actually suffered?
- What subjective factors, including the defendant's prior record, financial capacity, and post-incident remediation, bore on the appropriate penalty?
- How should the penalty relate to the fine imposed on the subcontracting company, Teswor Pty Limited, which was sentenced separately for its role in the same incident?
- What reduction, if any, was warranted for the early guilty plea and cooperation with WorkCover?
Decision
Objective gravity: Curtis J assessed the objective seriousness of the offence as significant. The potential for harm included death, and the actual harm was severe and permanent. Critically, the site supervisor had personally identified the risk in writing that morning but took no action to address it. His Honour noted that adequate handrail protection could have been installed in approximately five minutes. The systemic failure to require safe work method statements from subcontractors before they commenced work compounded the individual lapse.
Victim's circumstances: The injured man sustained profound and permanent disabilities. He lost insight into his own condition, suffered memory and sensory impairments, and was left unable to work. He was forced to sell the business he had built over 30 years and became permanently dependent on family care.
Deterrence and denunciation: His Honour held that general deterrence had to be reflected in the penalty, given the well-known dangers associated with the building trade and multi-storey construction. Specific deterrence was given limited weight because the defendant had, following the accident, adopted a new system using scaffolding before first-floor work commences, effectively eliminating the risk of an unguarded void.
Subjective factors and parity: The defendant's 35-year conviction-free record was treated as exemplary. The company had historically declined to compete on price by removing itself from the two-storey market rather than cut corners on scaffolding, which demonstrated a responsible attitude to safety. The defendant had also engaged consultants and conducted safety audits. Comparing the position of Teswor Pty Limited, which received a lower fine partly because of limited financial means, Curtis J found the cases were not comparable: the defendant earned $1.2 million profit before tax in 2013, and its site supervisor had directly perceived and failed to address the danger, with the authority to direct the subcontractors to do so. A 25% discount was applied for the early guilty plea and cooperation with WorkCover.
Orders Made
- The defendant is convicted and fined $72,375 (reflecting a starting penalty of $110,000, less $13,500 costs, with a 25% reduction for the early guilty plea).
- The defendant is ordered to pay WorkCover's costs of $13,500.
- A moiety (half) of the penalty is to be paid to WorkCover.
Key Takeaways
- The District Court treated the site supervisor's own written acknowledgment of the unguarded void as a significant aggravating factor: actual foresight of a risk, followed by inaction, heightened the defendant's culpability materially.
- A systemic failure to require safe work method statements from subcontractors before they commenced work can form part of the basis for a finding of greater corporate culpability, even where individual employees also bear responsibility.
- Parity between co-offenders does not operate mechanically: differences in financial capacity, degree of control over the site, and the actual awareness of the risk can justify meaningfully different penalties for parties charged in connection with the same incident.
- Where a defendant has taken genuine and effective remedial steps after an incident to engineer out the relevant risk, specific deterrence carries reduced weight at sentencing, though general deterrence remains significant in the building and construction context.
- Agreed prosecution costs were treated as forming part of the overall penalty and were taken into account in fixing the fine, consistent with the principle that the total burden on the defendant should be considered.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated