Citation: SafeWork NSW v CTN Construction Pty Limited [2017] NSWDC 340
Court: District Court of New South Wales
Date: 29 November 2017
Judge: Judge D. Russell
Background
CTN Construction Pty Limited was the principal contractor overseeing the renovation and extension of a residential property at Roseville, NSW. The company engaged a subcontractor to carry out timber framing work, and that subcontractor in turn engaged his brother (the victim) and another worker to assist. The victim was an experienced carpenter with over 30 years in the trade.
On 15 September 2015, the sole director of CTN Construction directed the victim to come to the second storey of the site to discuss a roofing matter. While the two men were talking, the victim walked backwards and fell through an unguarded floor opening, dropping approximately three to four metres to the ground below. The opening had been left uncovered to allow materials to be passed between floors.
The victim suffered severe injuries including a traumatic brain injury, multiple skull and facial fractures, a punctured lung, a fractured collarbone, and minor neck fractures. He was hospitalised for two months. During that hospitalisation, doctors separately diagnosed liver cancer unrelated to the fall; the victim subsequently died from that disease.
Legal Issues
- Whether CTN Construction, as a person conducting a business or undertaking, failed to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 by exposing the victim to a risk of death or serious injury, contrary to s 32 of that Act
- The objective seriousness of the offence and the appropriate penalty, having regard to aggravating and mitigating factors
- The weight to be given to the offender's financial circumstances in moderating the fine
- The application of the guilty plea discount
- The appropriate costs order
Decision
CTN Construction pleaded guilty to the charge. Judge Russell assessed the objective seriousness of the offending as significant. The void had been left unguarded for at least two weeks while workers regularly worked near it on the second storey. No specific warnings were given to the victim about the hazard, no covers or guardrails were in place, and the company's own written safety documents (including a work health and safety arrangements document and a generic risk assessment) were either not communicated to workers or not enforced at the site.
Several aggravating factors were identified: the risk was foreseeable and easily preventable; relevant codes of practice provided clear guidance on protecting floor openings; and the company had produced safety documentation that it simply failed to implement. The victim's serious injuries reinforced the gravity of the breach.
In mitigation, the court accepted the guilty plea, evidence of remorse, and the company's cooperation with investigators. The sole director had provided complete and current financial records, which the court noted was not always the case in prosecutions of this kind. The court accepted that the company was small, with modest turnover and profit, and moderated the fine it would otherwise have imposed to reflect the offender's limited financial capacity.
The court set an appropriate base fine of $100,000, then applied a 25 per cent discount for the guilty plea, arriving at a final fine of $75,000.
Orders Made
- CTN Construction Pty Limited convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $75,000 imposed
- Pursuant to s 122(2) of the Fines Act 1996, 50 per cent of the fine to be paid to the prosecutor (SafeWork NSW)
- Offender to pay the prosecutor's agreed costs of $20,000
Key Takeaways
- The District Court confirmed that a principal contractor's health and safety duty under s 19(1) of the Work Health and Safety Act 2011 extends to workers engaged through subcontractors, even where the subcontracting arrangements are entirely verbal and payments are made in cash.
- Having written safety documentation that is not communicated to workers or not enforced on site does not satisfy the duty to manage risks; the court treated the existence of unimplemented documents as an aggravating feature rather than mitigation.
- A floor void left unguarded for weeks, in circumstances where workers routinely accessed the area above it, was treated as a foreseeable and readily preventable hazard, which elevated the objective seriousness of the offence.
- Financial capacity is a relevant consideration in setting the quantum of a WHS fine: the court moderated the penalty after accepting evidence of the company's modest turnover, limited assets, and absence of borrowings, though it noted the possibility of the director borrowing personally to meet any penalty.
- Applying established sentencing principles, a 25 per cent reduction from the base fine was granted to reflect the guilty plea, resulting in a final penalty of $75,000 against a maximum of $1,500,000.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 274
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- SafeWork Australia, Managing the Risk of Falls at Workplaces Code of Practice (March 2015)
- WorkCover, Preventing Falls in Housing Construction Code of Practice (July 2014)
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
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Veen v R (No. 2) (1998) 164 CLR 465
- Baumer v R (1998) 166 CLR 51
- R v McNaughton (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Jahandideh v R [2014] NSWCCA 178