Citation: SafeWork NSW v Billyard Homes Pty Limited [2017] NSWDC 336
Court: District Court of New South Wales
Date: 24 November 2017
Judge: Judge D. Russell
Background
The defendant, a residential building and construction company, was the principal contractor on a home construction site in West Pennant Hills. It had engaged a licensed scaffolder to install scaffolding over a stair void and had subcontracted plastering and gyprocking work through a chain of subcontractors.
A young worker employed by the second-tier subcontractor (Sea Chen Pty Limited) was working on the site on 29 June 2015. Between the Friday when the subcontractor commenced work and that Monday, persons unknown had removed the wired-down scaffold planks covering a trapezoid-shaped void adjacent to the stair scaffold. The worker ascended a ladder through the now-unguarded opening and fell approximately 2.5 metres to the concrete floor below.
The worker sustained severe injuries, including a major traumatic frontal brain injury. The defendant pleaded guilty to failing to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (WHS Act), thereby exposing the worker to a risk of death or serious injury, contrary to s 32 of that Act.
Legal Issues
- What penalty was appropriate for a head contractor that failed in its primary duty under the WHS Act where a subcontractor's employee fell through an unguarded void?
- How should objective seriousness, mitigating factors (including a guilty plea), and aggravating factors be balanced in arriving at a fine?
- What weight should be given to general and specific deterrence?
- How should the totality principle apply where costs were also ordered?
Decision
The court assessed the objective seriousness of the offence as significant. The principal contractor had no site-specific safety management plan, conducted no site induction, and held no toolbox talks with workers. Its supervisor had visited the site on the Friday but not before the incident on the Monday. The scaffold planks covering the dangerous void had been removed in the interim, and the defendant had no system in place to detect or prevent interference with scaffolding.
The maximum penalty for the offence was a fine of $1,500,000. The court identified the appropriate base fine as $80,000, reflecting the objective gravity of the failure and the serious harm caused. The defendant's long trading history, absence of prior convictions, and post-incident remediation (including obtaining work method statements and introducing toolbox talks from 2016) were treated as mitigating factors.
The court reduced the base fine by 25 percent to reflect the guilty plea, consistent with the principles in Nash v Silver City Drilling and related authorities. That produced a final fine of $60,000.
The court took the victim impact statement into account as evidence of harm to the community under s 28(4) of the Crimes (Sentencing Procedure) Act 1999. The victim's ongoing cognitive and physical impairments, social isolation, and financial vulnerability were detailed in that statement and informed the court's assessment of the harm caused by the offence.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $60,000 was imposed (base fine of $80,000, reduced by 25 percent for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50 percent of the fine was ordered to be paid to the prosecutor.
- The defendant was ordered to pay the prosecutor's agreed costs of $24,500.
Key Takeaways
- A principal contractor's duty under s 19(1) of the WHS Act extends to monitoring and maintaining safe conditions on site even where the immediate work is performed by subcontractors engaged through an intermediary.
- The absence of site-specific safety documentation, site inductions, and toolbox talks were identified as failures that increased the objective seriousness of the offence, even where general safety management systems existed.
- A 25 percent discount on the base fine was applied for a guilty plea, consistent with established NSW sentencing principles for WHS Act prosecutions.
- Where scaffold planks covering a dangerous void were removed by persons unknown, the head contractor remained liable for failing to have systems in place to detect and prevent such interference.
- Post-incident remediation and a long trading history with no prior convictions were accepted as mitigating factors, but neither displaced the need for a meaningful fine to reflect general deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- Veen v R (No. 2) (1998) 164 CLR 465
- 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
- Jahandideh v R [2014] NSWCCA 178