Citation: WorkCover Authority of New South Wales v JMW Developments Pty Limited [2015] NSWDC 259
Court: District Court of New South Wales
Date: 8 July 2015
Judge: Kearns DCJ
Background
A bricklayer suffered an electric shock while working on scaffolding at a residential construction site in Hammondville in April 2012. He was inserting metal reinforcing poles into building blocks when one of the poles made contact with a low-voltage overhead power line that ran within a few metres of the scaffolding. The defendant was the head contractor on the site and had engaged subcontractors to erect the scaffolding and perform bricklaying work.
WorkCover brought proceedings against the head contractor under the Work Health and Safety Act 2011 for failing to discharge its duty to ensure the health and safety of workers. The defendant entered an early guilty plea.
Legal Issues
- Whether, and to what degree, the defendant failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011, contrary to s 32
- What penalty was appropriate having regard to objective seriousness, foreseeability of the risk, available preventive measures, and the purposes of deterrence
- Whether the parity principle applied, given that the scaffolding subcontractor had been separately sentenced
- Whether legal costs paid by the defendant to the prosecution could be taken into account when fixing the penalty
Decision
Objective seriousness. The court found the offence to be of considerable objective seriousness. The risk of injury from handling metal near live power lines was readily foreseeable, as were the consequences, including electrocution. Multiple practical control measures were available and not implemented: the power line could have been de-energised by contacting the electricity authority, a physical barrier could have been erected, or a spotter and protective coverings known as "tiger tails" could have been used. The defendant also failed to ensure an adequate safe work method statement was in place, failed to conduct a required risk assessment, and failed to ensure the injured worker was properly trained. Notably, the worker had received construction induction training in 1985 in Farsi, had limited English, could not read English, and had not signed the site induction checklist.
Subjective factors and deterrence. The defendant had no prior convictions. Its director, who was responsible for on-site operations, had worked in construction and electrical contracting without incident since 1988. He frankly acknowledged the failures and demonstrated genuine remorse through his affidavit. He had since implemented improved systems of work, including requirements that independent contractors demonstrate safe work systems and complete a site induction program. Specific deterrence was assessed as a lesser concern given those steps, but general deterrence remained significant given the frequency of construction work near overhead power lines and the potential for fatal outcomes.
Parity principle. The court declined to apply the parity principle by reference to the $500,000 fine imposed on the scaffolding subcontractor in separate proceedings. The subcontractor had been unrepresented at its sentencing hearing and no mitigating material was placed before that court, making a meaningful comparison inappropriate.
Costs. The court held that costs paid to the prosecution may be taken into account when assessing penalty in WorkCover prosecutions, consistent with practice in prosecutions by other regulatory bodies. However, because the agreed costs of $14,000 were relatively modest, they carried limited weight in the overall assessment.
Orders Made
- The defendant was convicted and fined $75,000, with a moiety (half the fine) payable to the prosecution.
- The defendant was ordered to pay the prosecutor's agreed costs of $14,000.
Key Takeaways
- The District Court confirmed that a head contractor's duty under s 19(1) of the Work Health and Safety Act 2011 extends to ensuring that subcontractors' work is performed safely, including that scaffolding is installed a safe distance from live power lines and that appropriate risk assessments and safe work method statements are in place.
- Foreseeability of both the risk and its consequences is a primary consideration in assessing the objective seriousness of a work health and safety offence; where multiple practical preventive measures were readily available and not taken, that seriousness is heightened.
- A starting penalty of $100,000 (from a maximum of $1,500,000) was reduced by 25 percent to $75,000 in recognition of the early guilty plea and co-operation with the regulator.
- The parity principle does not apply mechanically where a co-offender was sentenced in separate proceedings without legal representation and without mitigating material being put before the court.
- Prosecution costs agreed between the parties may be taken into account when fixing a penalty in WorkCover prosecutions, though not on a dollar-for-dollar basis.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Work Health and Safety Regulation 2011 (NSW), cl 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A and 21A
- WorkCover Code of Practice for Work Near Overhead Power Lines
- Relevant Australian Standard (specifying a 4-metre clearance from overhead power lines where metal is used)
Cases: No specific cases were cited in the portions of the judgment provided.