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District Court 24 August 2016

SafeWork NSW v Ceerose Pty Ltd

[2016] NSWDC 184

Other
PLEA OF GUILTY FATAL INJURIES WHETHER RISK WAS REASONABLY FORESEEABLE FORESEEABILITY OF CONSEQUENCES OF RISK HIGH RISK INDUSTRY MID

Citation: SafeWork NSW v Ceerose Pty Ltd [2016] NSWDC 184
Court: District Court of NSW
Date: 24 August 2016
Judge: Kearns DCJ

Background

Ceerose Pty Ltd was the principal contractor on a refurbishment project at a building in Camperdown, NSW. As part of the works, three large steel skylight frames, each approximately seven metres long, 2.4 metres wide, and weighing around one tonne, were lifted by crane and placed onto beams roughly 11 to 12 metres above ground level. After placement, the frames were left unsecured and no exclusion zone was maintained below them.

A worker supplied through a labour hire company was working beneath the installed skylight frames when one fell and struck him, causing fatal injuries. The precise cause of the frame falling was not established beyond reasonable doubt, but it was not in dispute that the frame had not been bolted or otherwise secured to the structure as required by the engineering specifications.

Ceerose pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011, namely failing to comply with its primary duty under section 19(1) to ensure, so far as reasonably practicable, the health and safety of workers whose activities it influenced or directed.

  • What was the appropriate level of objective seriousness for the offence?
  • Whether the risk of the skylight frame falling was reasonably foreseeable, and whether the consequences of that risk materialising were also foreseeable
  • Whether the short period of time the unsecured frames posed a risk reduced Ceerose's culpability
  • Whether Ceerose's culpability could be diminished by reference to the greater culpability of other parties, including the steel subcontractor (DSF) responsible for securing the frames
  • Whether Ceerose could rely on the contractual obligations of third parties to reduce its own culpability
  • What mitigating factors applied, including the guilty plea, post-incident safety improvements, remorse, prior record, and co-operation with the regulator
  • The appropriate quantum of the fine, taking into account all sentencing purposes including deterrence

Decision

Kearns DCJ assessed the offence as being of mid-range objective seriousness. The risk was plainly foreseeable: unsecured heavy steel frames positioned high above workers, with a crane continuing to operate nearby, created an obvious hazard. The consequences of the risk materialising were equally foreseeable, given the weight and height of the frames. A simple, readily available measure, maintaining and enforcing an exclusion zone until the frames were confirmed as secured, would have eliminated the risk.

The court rejected the argument that the brief duration of the risk, between the completion of crane work and the incident, reduced Ceerose's culpability in any meaningful way. The court similarly rejected any suggestion that Ceerose's culpability was reduced by the higher culpability of the subcontractor responsible for actually securing the frames. As principal contractor, Ceerose bore an overarching duty of safety and had direct supervision and control over the labour hire workers who were exposed to the risk. Contracting out installation work did not transfer or diminish that primary duty.

On mitigation, the court accepted several factors in Ceerose's favour. The company had entered a guilty plea almost immediately upon service of the amended summons, attracting a 25 per cent discount. It had implemented improved safety systems following the incident, expressed genuine regret and remorse, co-operated with the regulator, and maintained a relatively good record for a company operating in a high-risk industry (it had one prior conviction). The court also made some allowance for Ceerose's liability to pay the prosecutor's agreed costs of $60,000.

The court received four victim impact statements from members of the deceased worker's family. It accepted the statements as confirmation of the profound loss suffered by the family and expressed condolences, but applied the statements within the constraints identified in the authorities. After applying the 25 per cent guilty plea discount, the court imposed a fine of $300,000, concluding that a substantial penalty was necessary to reflect the objective seriousness of the offence and the requirements of both specific and general deterrence.

Orders Made

  • Ceerose Pty Ltd convicted and fined $300,000, with a moiety (half) payable to the prosecutor
  • Ceerose to pay the prosecutor's costs in the agreed sum of $60,000

Key Takeaways

  • A principal contractor's overarching duty under section 19(1) of the Work Health and Safety Act 2011 is not diminished by the fact that a subcontractor bore primary responsibility for the specific task that gave rise to the risk. The District Court held that Ceerose remained culpable as the party with direct supervision and control over the workers exposed to the hazard.

  • Contracting out work through subcontractors does not transfer the primary duty of care imposed on a principal contractor, and reliance on the contractual obligations of third parties carries no weight in mitigation of that duty.

  • The brief period during which a risk existed does not, of itself, materially reduce a defendant's culpability, particularly where the risk was obvious and the measure to eliminate it was simple and readily available.

  • A 25 per cent discount for a guilty plea entered at the first available opportunity applied in this sentencing context, consistent with established practice.

  • In mid-range objective seriousness Category 2 WHS offences involving a fatality, the combination of foreseeability, the availability of a simple preventive measure, the defendant's supervisory role, and deterrence considerations can support a substantial fine even after full mitigation is applied. Here, the court settled on $300,000 after the guilty plea discount.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- WorkCover Authority of New South Wales v JMW Developments Pty Limited [2010] NSWDC 259
- TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1
- R v Turnbull [2016] NSWSC 847