Citation: WorkCover Authority of NSW v Karimbla Construction Services Pty Ltd [2014] NSWDC 287
Court: District Court of New South Wales
Date: 16 September 2014
Judge(s): Curtis J
Background
On 12 May 2012, a bricklayer fell 3.2 metres through a green, unset party wall he was constructing at a residential development site in Sylvania. Because the site sloped steeply toward the waterfront, the floor of the unit below was significantly lower than the scaffolding platform on which he stood. No scaffolding had been placed in the lower unit to arrest a fall, contrary to applicable building standards.
The head contractor on the site was Karimbla Construction Services Pty Ltd. It had subcontracted the brickwork and associated scaffolding to Gemfen (Australia) Proprietary Limited. Karimbla's site safety officer, Mr Koumbaros, failed to ensure that Gemfen erected the necessary scaffolding.
The bricklayer suffered multiple rib fractures, a pneumothorax, fractures to vertebral transverse processes and his sternum, and soft tissue injuries. He made a full recovery and returned to bricklaying. Karimbla pleaded guilty to a charge of failing to comply with its primary duty of care under section 19(1) of the Work Health and Safety Act 2011, contrary to section 32 of that Act.
Legal Issues
- What was the appropriate penalty for Karimbla's breach of its primary duty of care under the Work Health and Safety Act 2011, having regard to the nature and circumstances of the offence?
- To what extent did Karimbla's safety systems and subjective circumstances bear on culpability and the weight to be given to specific versus general deterrence?
- What discount, if any, was warranted for the guilty plea and cooperation with authorities?
Decision
Nature and extent of the breach: The court found that the breach was not a systemic failure by Karimbla. Rather, it resulted from a failure of personal attention by Mr Koumbaros, who for the purposes of the legislation personified the company on the day in question (at [7], [12]). The court accepted that Karimbla had an adequate safety system in place, including a national safety manager who attended each site weekly, site-specific safety plans, induction programmes, toolbox talks, and subcontractor supervision requirements (at [8]-[11]).
Objective seriousness: Despite the non-systemic nature of the failure, the court emphasised that the risk was foreseeable, the consequences were serious and could have included death given the height of the fall, and the measures needed to eliminate the risk were simple and readily available on site at no additional cost (at [13]).
Subjective factors and deterrence: The court assessed the offence as being at the lower end of culpability, given Karimbla's generally strong attitude toward safety. Specific deterrence was therefore given limited weight. However, the court held that general deterrence remained an important consideration, as did the legislative maximum penalty of $1.5 million (at [14]). Karimbla's record of only one prior conviction, itself involving a similar casual failure of oversight rather than a systemic breach, was treated as commendable (at [15]). The court accepted that genuine remorse had been demonstrated (at [16]).
Penalty: The court set the base fine at $100,000, then reduced it to $75,000 in recognition of the guilty plea and cooperation with WorkCover (at [17]).
Orders Made
- Karimbla Construction Services Pty Ltd convicted and fined $75,000.
- Karimbla ordered to pay prosecution costs agreed in the sum of $10,500.
- A moiety (half) of the fine ordered to be paid to the prosecutor.
Key Takeaways
- A head contractor's liability under section 19(1) of the Work Health and Safety Act 2011 can be engaged by the conduct of a site supervisor, who may be treated as personifying the company for the purposes of the legislation on any given day (at [12]).
- Where a defendant has an otherwise adequate safety system and the breach stems from an individual's failure of attention rather than a systemic deficiency, the court may place the offence at the lower end of culpability and reduce the weight given to specific deterrence (at [7], [14]).
- General deterrence remains a significant sentencing consideration in work health and safety matters, particularly where the legislative maximum penalty is substantial and the foreseeable consequences of the breach include death (at [13], [14]).
- The simplicity and low cost of the measures required to eliminate a risk can aggravate the objective seriousness of a failure to implement them, even where that failure is not systemic (at [13]).
- A guilty plea and cooperation with the prosecuting authority resulted in a 25 percent reduction from the base fine of $100,000 to the final penalty of $75,000 (at [17]).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011
Cases
- Not stated