Citation: WorkCover Authority of NSW v Build Corp P/L [2014] NSWDC 284
Court: District Court of NSW
Date: 11 November 2014
Judge(s): Curtis J
Background
The defendant, a principal contractor, was engaged to carry out approximately $3 million worth of repairs to a large apartment complex in Pyrmont. It subcontracted the remedial brickwork and separately engaged another company to supply and install scaffolding and material hoists. A further subcontractor was engaged to provide the hoists themselves.
One of the hoists, located on Harris Street North, was only partly installed and was not fit for use. Despite this, a key was left in the hoist and no locking gates were fitted to prevent unauthorised access. Workers on site used the hoist without authorisation, and the defendant's own supervisory personnel were aware of this practice but took no steps to stop it.
On 28 September 2010, an unlicensed 19-year-old apprentice operated the hoist while carrying tools and equipment. A roll of mesh left on the hoist by another subcontractor's employees protruded over the platform edge, contrary to the hoist's operating instructions. When the hoist was elevated, the mesh became entangled in scaffolding, dislodging an eight-foot steel scaffold board. The board struck two workers below. One suffered minor injuries; the other sustained a fractured vertebra, nerve root injuries, post-traumatic stress disorder, and an alcohol disorder, and his life was profoundly altered as a result.
Legal Issues
- Whether the defendant, as principal contractor, had failed to ensure that persons not in its employment were not exposed to risks to their health and safety at the worksite
- What penalty was appropriate, having regard to the objective seriousness of the offence, the catastrophic harm caused, the need for general and specific deterrence, and the defendant's subjective circumstances
Decision
Conviction:
The defendant pleaded guilty to the charge of failing to ensure that persons not in its employment were not exposed to risks to their health and safety (at [1]). The court convicted the defendant accordingly.
Objective seriousness and the failures involved:
The court found the defendant's failures were manifest (at [10]). The project supervisor responsible for checking the hoist held no relevant certificate of competency, and neither he nor a leading hand took any steps to stop unlicensed workers from operating the equipment, despite both being aware of that practice (at [10]-[11]). The project manager remained unaware that no hoist handover checklist had been completed and that unauthorised use was occurring, and the circumstances of that ignorance were unexplained (at [12]). A pre-accident safety audit had incorrectly recorded that only licensed persons were using the hoist, and how that audit was conducted also remained unexplained (at [13]).
Deterrence and denunciation:
The court noted that the building industry is notoriously dangerous and that general deterrence must be reflected in the penalty, notwithstanding the defendant's previously good record (at [14]). The need for specific deterrence was limited given the defendant's subsequent remediation of its safety systems (at [15]). The court held that the penalty must also serve as a denunciation of conduct that caused catastrophic injuries (at [16]).
Subjective circumstances and penalty:
The defendant had operated in a dangerous industry for ten years without prior convictions, had established documented safety systems, and was of particularly good character, including a strong record of charitable contributions and site-specific safety awards (at [16]). The court assessed a base penalty of $100,000 and applied a 25% discount for remorse, contrition, co-operation with authorities, and an early guilty plea, resulting in a fine of $75,000 (at [18]).
Orders Made
- The defendant is convicted of the charge
- The defendant is fined $75,000 (after a 25% discount from a base penalty of $100,000)
- The defendant is ordered to pay the prosecution's costs of $16,000
- WorkCover Authority is to receive a moiety (half) of the fine
Key Takeaways
- A principal contractor's documented safe work systems will not, of themselves, reduce culpability where supervisory personnel on site knowingly disregard those systems and no adequate enforcement mechanisms are in place (at [10]-[13]).
- The District Court treated the catastrophic and lasting personal consequences suffered by an injured worker as a factor directly relevant to the level of penalty, not merely background context (at [9], [16]).
- General deterrence carries significant weight in sentencing for workplace safety offences in the building industry, even where the offender has an otherwise strong safety record (at [14]).
- A 25% sentencing discount applied where the defendant demonstrated remorse, co-operated with authorities, and entered an early guilty plea, reducing the fine from $100,000 to $75,000 (at [18]).
- An unexplained pre-accident audit that wrongly certified compliance with safety requirements was identified as an aggravating feature of the offending, separate from the on-site supervisory failures (at [13]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated