Citation: SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
Court: District Court of New South Wales
Date: 24 August 2016
Judge: Kearns DCJ
Background
DSF Constructions Pty Ltd is a small, family-run structural steel subcontractor. On 13 April 2013, it was engaged at a building refurbishment site in Camperdown, Sydney, to design, manufacture, deliver and install structural steel works, including skylight frames, under the direction of the head contractor, Ceerose Pty Ltd.
That morning, DSF's sole employee and director, Mr Agusi, oversaw the crane-lifting of three large skylight frames (each approximately 7 metres by 2.4 metres and weighing around one tonne) into position at roof height, roughly 11 metres above the ground. The frames were placed but not yet bolted, welded, or otherwise permanently secured. Once DSF's lifting operations concluded, an exclusion zone that had been in place during steelwork erection was no longer delineated.
A separate crane operator then began unrelated lifting works nearby. Three labour-hire workers were permitted to re-enter the area below the unsecured frames. One worker, Mr Mathieu Linares-Lopez, was on the ground level when the crane or its load struck the steel frame. One of the unsecured skylight frames fell and struck him, causing fatal injuries.
Legal Issues
- Whether DSF 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 at the site.
- Whether that breach amounted to a Category 2 offence under s 32 of the Act, given that it exposed an individual to a risk of death or serious injury.
- What the appropriate sentence was, having regard to the objective seriousness of the offence, DSF's relative culpability, and mitigating factors including the guilty plea, remorse, and cooperation with the regulator.
Decision
Kearns DCJ accepted DSF's guilty plea, noting the offence was properly characterised as falling within the mid-range of objective seriousness. The risk was foreseeable: an unsecured, one-tonne frame positioned 11 metres above a work area, near an operating crane, presented an obvious danger if struck. The consequences of that risk materialising were equally foreseeable, and readily available measures, such as maintaining or re-establishing an exclusion zone, could have reduced or eliminated the risk.
The court acknowledged that DSF had relied on an engineer's approval to proceed with placing the skylight frames, and that this reliance was a matter of some weight. However, this consideration was significantly diminished by the fact that DSF knew the frames had not been secured, knew a crane was operating in close proximity, and knew the frames could fall if struck. That knowledge meant the residual risk remained within DSF's awareness.
On relative culpability, the court noted that other parties, including the head contractor Ceerose and the crane operator Coopers, bore responsibilities in relation to the incident. However, this consideration did not displace DSF's own culpability for failing to ensure an exclusion zone remained in place over the unsecured frames.
In mitigation, the court accepted that DSF pleaded guilty at the first available opportunity, had no prior convictions, cooperated with the regulator, demonstrated genuine remorse and contrition, and had since improved its safety systems. A 25 percent discount was applied to the penalty for the guilty plea.
Orders Made
- DSF Constructions Pty Ltd was convicted and fined $225,000, with a moiety (half the fine) payable to the prosecutor.
- DSF is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A structural steel subcontractor's awareness that skylight frames were unsecured and positioned near an operating crane was sufficient to ground culpability under s 19(1) of the Work Health and Safety Act 2011, even where another party's crane operations directly triggered the fall.
- Under s 32 of the Act, a Category 2 offence is established where a failure to comply with a health and safety duty exposes an individual to a risk of death or serious injury; the risk need not be the sole or direct cause of the ultimate harm.
- Reliance on an engineer's approval to proceed with placing unsecured structural elements does not extinguish a duty-holder's obligation where the duty-holder is independently aware of an ongoing risk to workers in the vicinity.
- The District Court confirmed that relative culpability among multiple parties at a worksite is a relevant sentencing consideration, but does not diminish the individual liability of each party for their own failures.
- Mitigating factors, including a guilty plea entered at the first opportunity, cooperation with the regulator, no prior convictions, genuine remorse, and post-incident safety improvements, collectively supported a 25 percent reduction from the otherwise appropriate penalty and an ultimate fine of $225,000.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
Cases
- R v Turnbull [2016] NSWSC 847
- SafeWork NSW v Ceerose Pty Ltd (heard concurrently, sentence delivered immediately prior)