Citation: Safe Work (NSW) v Action Concreting and Constructions Pty Ltd [2017] NSWDC 191
Court: District Court of New South Wales
Date: 31 July 2017
Judge: Judge AC Scotting
Background
Action Concreting and Constructions Pty Ltd (Action) was a subcontractor engaged by the principal contractor, Kazoo Aquasports Pty Ltd (Kazoo), to perform steel fixing and formwork on a multi-storey residential building at Clareville, NSW. Action in turn sub-subcontracted the labour through another entity, and a worker, Mr Gaica, was engaged to perform formwork tasks on the first floor of the building.
On 11 October 2014, Mr Gaica stepped onto a timber beam that protruded past the edge of the first floor extension platform. The beam had been left unsupported after an Acro Prop was removed the previous day at the direction of Kazoo's director. The beam gave way, and Mr Gaica fell approximately two to three metres onto concrete stairs below. No handrails, guardrails, scaffolding or other edge protection had been installed along the front edge of the building.
Action pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011, thereby exposing Mr Gaica to a risk of serious injury or death. The maximum penalty for the offence was a fine of $1.5 million. Judge Scotting had separately sentenced the co-offender, Kazoo, in relation to the same incident.
Legal Issues
- What was the objective seriousness of Action's offence, having regard to the likelihood of the risk, the gravity of potential harm, and the ease with which the risk could have been eliminated?
- What mitigating and aggravating factors applied to the sentencing of Action?
- Whether the principle of parity with the sentence imposed on co-offender Kazoo should influence the penalty imposed on Action.
- What fine was appropriate given Action's financial capacity, its guilty plea, remorse, and co-operation with investigators?
- Whether prosecution costs should be ordered, and in what amount.
Decision
Objective seriousness: The court found the offence was of moderate objective seriousness. The risk of falling from an unprotected edge was obvious and expressly identified in Action's own Safe Work Method Statement (SWMS). However, the likelihood of the risk materialising was assessed as low, because only part of the first floor was unprotected and Mr Gaica's decision to step beyond the edge board contributed materially to the incident. The steps needed to eliminate the risk, such as directing workers not to proceed near an unprotected edge or erecting a handrail from timber already on site, were simple and readily available. The gravity of potential harm was nonetheless significant, including a risk of death.
Mitigating factors: Several factors reduced the penalty. Action had no prior relevant convictions, had co-operated with the investigation, and entered a guilty plea at the first available opportunity. The principals of Action expressed genuine remorse and contrition. Since the incident, Action had ceased all work at heights entirely, operating exclusively at ground level. The court accepted these matters as genuine indicators of rehabilitation and specific deterrence concerns having already been addressed.
Parity and co-offender comparison: The prosecution conceded that Action was less culpable than Kazoo. However, the court noted that the agreed facts in each matter had been presented differently, meaning the two sentencing exercises had limited value as direct comparisons. The court was not satisfied that the difference in culpability between the two offenders was significant, and sentenced Action on its own agreed facts.
Penalty: The court determined that a fine of $36,000 was appropriate before discount, reduced by 25 percent to reflect the early guilty plea, yielding a final fine of $27,000. Half of the fine was directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996. Action was also ordered to pay the prosecutor's agreed costs of $13,000.
Orders Made
- Action Concreting and Constructions Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- Fine of $27,000 imposed (being $36,000 discounted by 25% for the guilty plea).
- 50% of the fine ($13,500) ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- Offender ordered to pay the prosecutor's costs in the agreed sum of $13,000.
Key Takeaways
- A subcontractor carrying out formwork at height was held to have breached its primary duty under section 19 of the Work Health and Safety Act 2011 by failing to ensure workers did not proceed near an unprotected edge, even where the principal contractor also bore responsibility for providing edge protection.
- The District Court treated the existence of a SWMS that identified falling hazards and nominated scaffolding as a control measure as a significant factor, given that neither the co-offender nor Action ensured compliance with those stated measures on the day.
- Where agreed facts differ between co-offenders in the same incident, the parity principle operates with limited force; the court emphasised it was bound to sentence each offender on their own agreed facts, and cautioned that sentences in such cases have reduced value as comparables.
- An early guilty plea at the first return date attracted the maximum 25% discount, consistent with the approach in R v Thomson and Houlton and R v Borkowski.
- Demonstrated post-incident remediation, including ceasing all work at height and reducing the scale of the business, was accepted as relevant to both remorse and the weight to be given to specific deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 19 (primary duty of care), s 32 (offence provision)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412