Citation: SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169
Court: District Court of New South Wales
Date: 22 June 2017
Judge: Judge D. Russell
Background
ProjectCorp Australia Pty Limited was the principal contractor on a residential construction site in Lindfield, NSW. It engaged NMK Pty Limited to perform excavation and demolition works, and NMK in turn engaged Laison Earthmoving and Plant Hire to supply labour. Kieran Dodge, employed by Laison as a machine operator, was operating a Hyundai excavator on site on 16 August 2013.
Mr Dodge had locked the excavator's glass front screen open against the cabin roof, leaving himself entirely unprotected from the front. While he was using a sifting bucket to load soil and rubble, a piece of steel reinforcing bar flew into the open cabin and pierced his skull. The bar penetrated 85mm into his frontal bones, causing a depressed skull fracture. He spent two weeks in hospital, required surgery that involved removing part of his forehead, and suffered permanent loss of smell and taste. He was unable to drive for six months but has since returned to work.
The excavator's operator manual expressly required the front window to be closed before commencing work. NMK's site-specific Safe Work Method Statement also required all plant to be operated in accordance with manufacturer's instructions. NMK's site supervisor had seen Mr Dodge operating the excavator with the window open on several occasions before the incident and had not directed him to close it. ProjectCorp pleaded guilty to failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing Mr Dodge to a risk of death or serious injury.
Legal Issues
- What was the objective seriousness of ProjectCorp's offence under s 32 of the Work Health and Safety Act 2011?
- What weight should be given to mitigating factors, including the guilty plea, the offender's prior good record, and post-incident remediation steps?
- How should the parity principle apply, given that NMK (the subcontractor whose supervisor directly observed the unsafe conduct) had already been sentenced?
- What was the appropriate fine, having regard to the offender's capacity to pay and the requirements of the Fines Act 1996?
Decision
Judge Russell assessed the objective seriousness of the offence as falling in the low to mid range. The risk was real and foreseeable, and could have been eliminated simply by ensuring the window was closed. However, the risk arose from a specific, observable act of one worker rather than a systemic failure across the site, and the operator manual and Safe Work Method Statements had addressed the requirement to keep the window closed. ProjectCorp's failure was characterised as a failure to enforce existing policies and to give Mr Dodge a specific instruction that the window must remain shut.
On subjective factors, the court accepted that ProjectCorp had a good safety record, no prior prosecutions, and had taken genuine remedial steps after the incident. The sole director's affidavit acknowledged the breach and the risk, and the court accepted this as genuine remorse and contrition. These factors warranted mitigation.
In applying the parity principle, Judge Russell compared ProjectCorp's culpability with that of NMK. The court noted that NMK's supervisor had personally and repeatedly observed the unsafe conduct and failed to act, placing NMK in a position of greater direct culpability. The court emphasised that the parity exercise is not about proportionately distributing a total penalty between co-offenders; rather, the relative contributions of each party assist in assessing the real culpability of the defendant being sentenced. Taking NMK's sentence as a reference point and accounting for ProjectCorp's lesser direct culpability, the court determined $120,000 as the appropriate base fine before the guilty plea discount.
The court then applied a 25% reduction for the early guilty plea, consistent with the principles in R v Thomson & Houlton, arriving at a final fine of $90,000. No evidence of limited capacity to pay was adduced, so that consideration did not reduce the penalty further.
Orders Made
- ProjectCorp Australia Pty Limited convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- Fine of $90,000 imposed (reflecting a 25% reduction from $120,000 for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- Offender to pay the prosecutor's costs in the agreed sum of $15,000.
Key Takeaways
- A principal contractor's failure to enforce its own site safety policies, and its failure to give a specific instruction about an identified risk, can ground a conviction under s 32 of the Work Health and Safety Act 2011 even where subcontractors are also implicated.
- The parity principle operates by permitting a comparison of two individual sentences to assess the real culpability of the defendant being sentenced; it does not require the court to apportion a global penalty between co-offenders proportionately.
- Where a subcontractor's supervisor directly and repeatedly observed unsafe conduct without intervening, the District Court found that subcontractor to bear greater culpability than the principal contractor who had no direct knowledge of the specific unsafe act.
- Genuine remorse, a strong prior safety record, no history of regulatory action, and meaningful post-incident remediation can together attract meaningful mitigation in WHS sentencing, even for offences involving serious physical injury.
- Under s 122(2) of the Fines Act 1996, the court has the power to order a portion of the fine to be paid to the prosecuting authority, as occurred here with 50% directed to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Veen v R (No. 2) (1998) 164 CLR
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Green v R [2011] HCA 49
- DPP v Gregory [2011] VSCA 145
- Jimmy v R (2010) 77 NSWLR 540
- Markarian v R (2005) 228 CLR 357
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
- Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125