Citation: SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited [2017] NSWDC 365
Court: District Court of New South Wales
Date: 15 December 2017
Judge: Judge D. Russell
Background
The offender, a scaffolding company, was contracted by a principal contractor to supply and erect scaffolding at a major Sydney construction site at Barangaroo South. On 8 August 2015, the offender allocated a scaffolder to operate a forklift for the day after the regular driver was unavailable. That scaffolder did not hold the required High Risk Work (HRW) licence to operate a forklift in New South Wales, and neither his supervisors nor the company checked whether he did.
While moving loads of dismantled scaffolding components, the unlicensed operator drove the forklift with his view of the path ahead obscured by the load. A construction worker employed by the principal contractor was crouching to spray-paint a marking on the ground in the forklift's path. The operator spotted movement and braked sharply, but the sudden stop caused the load to rock. The metal strapping broke, a stillage tipped, and scaffolding components fell onto the construction worker, injuring him.
SafeWork NSW prosecuted the scaffolding company under the Work Health and Safety Act 2011. The company pleaded guilty to failing to comply with its health and safety duty under section 19(1) of the Act, thereby exposing the injured worker to a risk of death or serious injury, contrary to section 32.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of the offence, mitigating and aggravating factors, and the principles of general and specific deterrence?
- What discount, if any, should apply to reflect the guilty plea?
- What weight should be given to the offender's post-incident remediation, expressions of remorse, and co-operation with authorities?
- Should the principle of totality affect the penalty, given a related prosecution against the principal contractor arising from the same incident?
- What were the offender's capacity to pay and the appropriate amount of any fine?
Decision
Judge Russell found the offence to be of moderate objective seriousness. The risk of injury was foreseeable: the offender's own Safe Work Method Statement required only licensed drivers to operate forklifts, yet no system existed to verify licences or to control access to the forklift key. The absence of a spotter when the operator's view was obscured compounded the risk. The injured worker suffered significant physical injuries and ongoing psychological harm.
In mitigation, the court accepted that the offender had no prior convictions, had implemented substantial remedial safety measures after the incident, and had expressed genuine remorse and contrition. The court also accepted that a supervising employee's false assumption about the unlicensed operator's credentials, combined with that operator's failure to disclose his unlicensed status, reduced, but did not eliminate, the offender's culpability.
On the question of totality, the court noted that a related prosecution against the principal contractor arising from the same incident had resulted in a fine of $225,000 (before plea discount). The court considered the respective roles and culpabilities of both entities and determined that the scaffolding company's fine should be set at a lower level, reflecting its more limited degree of responsibility for coordinating the overall worksite.
The court assessed the appropriate fine at $120,000 before discount. It then applied a 25 percent discount for the guilty plea, on the basis that, while the formal plea was entered in September 2017, the offender had signalled its intention to plead guilty as early as November 2016, only a few months after the summons was filed, and the intervening period was occupied by legitimate negotiations over agreed facts.
Orders Made
- The offender was convicted.
- A fine of $90,000 was imposed (being $120,000 reduced by 25 percent for the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50 percent of the fine was ordered to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's agreed costs of $37,000.
Key Takeaways
- The District Court confirmed that an employer's health and safety duty under section 19(1) of the Work Health and Safety Act 2011 includes verifying that workers allocated to operate plant hold the required licences, not merely assuming they do based on informal knowledge of their prior experience.
- A worker's failure to disclose that he lacked a required licence is a mitigating factor going to the employer's culpability, but it does not relieve the employer of its independent obligation to check and verify licensing before allocation.
- Where an operator's view is obscured by a load, the absence of a spotter or other traffic management control is a distinct and material failure capable of grounding an aggravating finding of foreseeable risk.
- The totality principle applied across related prosecutions arising from the same incident: the court adjusted the penalty to reflect the offender's role and culpability relative to the separately prosecuted principal contractor, rather than treating each prosecution in isolation.
- A 25 percent guilty plea discount was available even though the formal plea was entered relatively late, because the offender had indicated its intention to plead guilty at the earliest practicable opportunity and the delay resulted from legitimate negotiations over the agreed factual basis.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22(1)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- 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
- Jahandideh v R [2014] NSWCCA 178