Citation: WorkCover v Robertson [2015] NSWDC 367
Court: District Court of New South Wales
Date: 28 April 2015
Judge: Curtis J
Background
On 28 September 2010, two workers were injured at a building site in Pyrmont when a steel scaffolding board fell approximately 30 metres onto them. The board was dislodged by a roll of blue mesh protruding from a materials hoist that was being operated at the time. Both workers were employees of Now Access and Scaffolding Solutions Pty Limited, a company that had contracted to supply scaffolding and material hoists to the site.
The defendant was the sole director of Now Access and attended the site regularly to supervise. Now Access had sub-contracted installation of the hoist to another company, which was unable to complete that installation because the roof-level landing platform was not yet built. As a result, safety features including interlocking gates and a ground-level enclosure were never installed. Despite being told by the sub-contractor that the hoist was not fit for use, a key was left in the ground-floor control mechanism, and various unqualified tradespeople on the site used the hoist regardless.
On the day of the accident, a 19-year-old apprentice bricklayer employed by a different sub-contractor operated the hoist without a licence or training. He took no steps to prevent the roll of mesh from protruding from the platform. One worker suffered bruising and minor scarring; the other suffered a serious head injury, a fractured thoracic vertebra, permanent disabilities, and ongoing psychological harm including anxiety and nightmares.
Legal Issues
- Whether the defendant, as a person in a position to influence the conduct of Now Access, failed to use all due diligence to prevent the company's contravention of its work health and safety obligations under the Occupational Health and Safety Act 2000.
- What penalty was appropriate having regard to the objective seriousness of the offence, the defendant's capacity to pay, the need for general and specific deterrence, and his subjective circumstances.
- Whether a Section 10 order (dismissal without conviction) was appropriate in the circumstances.
- Whether the defendant should be ordered to pay prosecution costs.
Decision
Curtis J found that the defendant's plea of guilty was appropriate and accurate. The core failure of Now Access was that it condoned the use of an incomplete and unsafe hoist by unqualified persons, in circumstances where it had every reason to know the installation was not finished and the hoist was unsecured. The simplest available remedy, confiscating the key to the hoist, required no effort and no cost, yet was never taken. The conduct fell seriously below the standard expected of a reasonable person in the defendant's position, placing the offence toward the graver end of the spectrum.
On the question of general deterrence, Curtis J noted that the construction industry is well known for its dangers and that substantial penalties are necessary to signal that inadequate safety standards carry real consequences. The need for specific deterrence was limited, however, because the defendant's company had since been dissolved and he was no longer working in scaffolding.
Curtis J declined to apply Section 10 of the Crimes (Sentencing Procedure) Act 1999, which would have allowed dismissal without conviction. Although the defendant's good character, remorse, cooperation with the WorkCover investigation, and absence of prior convictions all weighed in his favour, the offence was not trivial. The court found that a fine of less than $10,000 would not adequately reflect the seriousness of what occurred.
Taking into account the defendant's significant financial hardship (he was bankrupt, with a taxable income of approximately $25,000 the previous year), the court discounted the penalty by 25% in recognition of the guilty plea. The maximum penalty available under the statute was $55,000. The court convicted the defendant and imposed a fine of $7,500. It declined to order prosecution costs on the basis that such an order would impose a disproportionate further burden given the defendant's financial circumstances.
Orders Made
- The defendant was convicted and fined $7,500.
- WorkCover was ordered to receive a moiety (half) of the fine.
- No order was made for prosecution costs.
Key Takeaways
- A director who is in a position to influence a company's conduct can be convicted under Section 26 of the Occupational Health and Safety Act 2000 for failing to use all due diligence to prevent the company's safety breach, even where the immediate operator of equipment was an employee of a different sub-contractor.
- The District Court treated the failure to secure an incomplete and unsupervised hoist, despite clear warnings that it was unfit for use, as a serious contravention sitting toward the graver end of the objective seriousness spectrum.
- Under Section 6 of the Fines Act 1996, a sentencing court is required to consider a defendant's means to pay, and the District Court here reduced the fine substantially below the statutory maximum of $55,000 to reflect bankruptcy and limited income.
- A guilty plea offered at the first reasonable opportunity after legal advice was obtained, even where that fell close to a scheduled hearing, may still attract a 25% discount where the delay resulted from financial inability to access legal representation rather than a deliberate tactical choice.
- Prosecution costs were not awarded where their imposition would have created a disproportionate additional penalty relative to the defendant's demonstrated financial position.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8(1), 26
- Fines Act 1996 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Cases cited: No cases were cited in the judgment.