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District Court 13 November 2017

Safe Work NSW v Ceerose Pty Ltd

[2017] NSWDC 313

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: Safe Work NSW v Ceerose Pty Ltd [2017] NSWDC 313
Court: District Court of New South Wales
Date: 13 November 2017
Judge: Judge AC Scotting

Background

The defendant, a construction management company, was the principal contractor at two Sydney sites in Camperdown. From early 2015, the company took full control of one of those sites (on Lyons Road), which was accessed via a large, heavy sliding steel gate originally operated by an electric motor. In March 2015, the company disconnected power to the site, rendering the gate manual-only.

A traffic controller employed by a labour hire company worked at the site under the direction and control of the defendant. She had raised concerns with a site supervisor about increasing difficulty in moving the gate, but no formal complaint was made in writing and no remedial action was taken. On 14 May 2015, when she attempted to close the sliding gate, it dislodged from its track and fell on top of her.

The worker suffered multiple pelvic fractures, fractures to her sacrum, and a wedge compression fracture of the T11 vertebra in her thoracic spine. She spent three months in Australia receiving treatment before returning to Germany, where she continued to experience ongoing pain and functional limitations. The defendant pleaded guilty to failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury.

  • What was the appropriate penalty for a category 2 offence under section 32 of the Work Health and Safety Act 2011, where a person conducting a business failed to discharge its duty and a worker was seriously injured?
  • How should the court assess the objective seriousness of the offence?
  • What aggravating factors applied, particularly whether the injury, harm, and loss caused were "substantial" within the meaning of the Crimes (Sentencing Procedure) Act 1999?
  • What mitigating factors applied, including the defendant's guilty plea, cooperation with investigators, and expressions of remorse?
  • What discount should be applied to the fine to reflect the guilty plea?

Decision

Judge Scotting assessed the objective seriousness of the offence in the context of the sentencing range available under the Act, where the maximum fine is $1.5 million. The defendant's failures were significant: it did not conduct a proper risk assessment after disconnecting power to the site, provided no training to the worker on how to manually operate the gate safely, kept no inspection records, and took no action despite receiving verbal complaints about the gate's deteriorating condition. A post-incident inspection confirmed that a slider block was missing from the gate mechanism, a defect that rendered the gate's safety stopper ineffective and made the gate liable to topple.

On aggravating factors, the court was satisfied beyond reasonable doubt that the injury, harm, and loss caused by the offence were "substantial" within the meaning of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. This finding required the court to be satisfied that the harm was greater or more deleterious than ordinarily expected for the offence in question, applying the standard from R v Youkhana. The Victim Impact Statement was accepted as relevant to establishing this factor.

On mitigating factors, the court accepted genuine remorse and contrition on the part of the defendant, evidenced through an affidavit from the company's Construction Manager. The defendant also cooperated with the Safe Work NSW investigation. The timing of the guilty plea attracted the maximum available discount of 25%, consistent with the principles in R v Thomson and Houlton and R v Borkowski.

The court set an appropriate fine of $400,000 before discount, which was reduced to $300,000 after applying the 25% guilty plea discount. Fifty per cent of the fine was directed to be paid to the prosecutor under section 122(2) of the Fines Act 1996. The defendant was also ordered to pay the prosecutor's costs.

Orders Made

  • The defendant was convicted of the offence.
  • A fine of $300,000 was imposed (reduced from $400,000 by 25% guilty plea discount).
  • 50% of the fine was ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
  • The defendant was ordered to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • Under section 32 of the Work Health and Safety Act 2011, a person conducting a business who fails to comply with a health and safety duty and thereby exposes a worker to a risk of death or serious injury faces a maximum fine of $1.5 million; the District Court imposed a $300,000 fine in this matter after a 25% guilty plea discount.
  • A post-incident change in site conditions, here the disconnection of power that converted an automatic gate to manual operation, can give rise to a distinct and actionable risk where the duty holder fails to conduct a fresh risk assessment, provide adequate instruction, or inspect the equipment.
  • The aggravating factor of "substantial" injury, harm, and loss under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 requires satisfaction beyond reasonable doubt that the harm exceeded what would ordinarily be expected for the type of offence charged, following R v Youkhana.
  • A guilty plea entered at an early stage attracts a discount at the higher end of the 10–25% range; in this case the court applied the full 25% discount, recognising that the timing of the plea is the primary consideration in locating the appropriate discount within that range.
  • Verbal complaints by a worker about deteriorating equipment conditions, even where not reduced to writing, formed part of the factual backdrop demonstrating the defendant's awareness of the risk and the inadequacy of its response.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(d), 21A(2)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m)
- Fines Act 1996 (NSW), ss 6, 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v McNaughton (2006) 66 NSWLR 566
- R v Youkhana [2004] NSWCCA 412
- R v Tuala [2015] NSWCCA 8
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1