Citation: WorkCover Authority of NSW v Plumbwizard Pty Limited and John Georges [2015] NSWDC 266
Court: District Court of New South Wales
Date: 6 March 2015
Judge: Kearns DCJ
Background
A 16-year-old apprentice plumber, employed for approximately three weeks and on only his first or second day at a construction site in Merrylands, fell through an uncovered penetration (opening) in a first-floor balcony of a duplex under construction. The fall was approximately three metres onto a concrete surface, causing serious injury. The employer, a plumbing company, was present on site through its sole director and shareholder.
The worker had received no safety training or induction of any kind before the incident. He had not received the mandated construction induction training, held no construction induction card, had not been inducted into any of the company's safety systems, and had not been shown any safe work method statements. The penetration in the balcony was intermittently covered by timber pallets that could be easily moved, and was otherwise left open and unbarricaded without warning.
The company and its director were each charged under the Work Health and Safety Act 2011 with failing to comply with their respective health and safety duties, thereby exposing the worker to a risk of death or serious injury. Both pleaded guilty.
Legal Issues
- Whether the employer (as a person conducting a business or undertaking) breached its duty under s 19(1) of the Work Health and Safety Act 2011 to ensure, so far as reasonably practicable, the health and safety of workers
- Whether the director (as an officer) breached his duty under s 27(1) to exercise due diligence to ensure the company complied with that duty
- What penalty was appropriate under s 32 (Category 2 offence) for each defendant, having regard to the gravity of the offence, deterrence, subjective circumstances, capacity to pay, parity, and totality
Decision
Kearns DCJ found that the gravity of the offending was significant. The foreseeability of injury was high: falls on construction sites are well known, the penetration was known to both defendants, and they knew it was not securely covered. A fall of three metres onto concrete plainly carried a foreseeable risk of serious injury. Simple, readily available measures, including proper induction training, securing or barricading the penetration, and the use of warning signs, could have prevented the incident.
The relationship between the company and the worker added weight to the seriousness of the offences. The common law and the Act impose a high standard of care on employers, particularly in construction environments. That standard was heightened further by the worker's youth and inexperience, neither of which prompted any protective response from the defendants.
On deterrence, the judge found that specific deterrence was not a major factor: following the incident, the defendants engaged a safety officer, implemented site inspection procedures, and developed comprehensive safe work method statements. General deterrence remained relevant, however, because the construction industry requires a clear understanding that serious penalties follow failures to maintain workplace safety.
In fixing the penalty, the court applied discounts for early guilty pleas (25% for the company, 15% for the director) and took into account the defendants' contrition and remorse, their prior good safety record, and the director's financial circumstances. The victim's impact statement was noted but not used in the penalty calculation. The court also had regard to parity with related proceedings against the site owner and to the totality principle to avoid an overall penalty that would crush the business.
Orders Made
Plumbwizard Pty Ltd:
- Convicted of the charge
- Fined $60,000 (a moiety payable to the prosecutor)
- Ordered to pay the prosecutor's costs of $10,000
John Georges:
- Convicted of the charge
- Fined $8,500 (a moiety payable to the prosecutor)
- Ordered to pay the prosecutor's costs of $25,000
(Note: A "moiety" refers to half of the fine being paid to the prosecutor, as provided for under the relevant legislation.)
Key Takeaways
- The District Court confirmed that both the corporate employer and its director as an officer faced separate, concurrent duties under the Work Health and Safety Act 2011, and that a guilty plea by one did not diminish the other's liability.
- A Category 2 offence under s 32 carries a maximum penalty of $1,500,000 for a body corporate and $300,000 for an officer, but the court reaffirmed that maximum penalties are reserved for the most extreme cases.
- Foreseeability of risk and the availability of simple preventive measures are central factors in assessing the gravity of a WHS offence; where both are high and measures easily accessible, the objective seriousness of the offending is correspondingly elevated.
- The youth and inexperience of a worker, combined with an absence of any induction, training, or site safety measures, are aggravating factors that increase the weight of the employer's duty and the seriousness of any failure.
- Post-incident remediation, absence of prior adverse safety incidents, contrition, and financial hardship are mitigating factors that courts will weigh in sentencing, alongside the principle of totality to avoid a penalty that would effectively destroy the defendant's ability to continue operating.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act (referenced in passing regarding financial relief)
Cases:
- WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362 (related proceedings arising from the same incident, concerning the site owner)