Citation: Safe Work (NSW) v Karimbla Constructions Services (NSW) Pty Ltd [2017] NSWDC 68
Court: District Court of New South Wales
Date: 31 March 2017
Judge: Judge AC Scotting
Background
The defendant was the principal contractor for a multi-storey mixed-use residential construction project at Mascot. A subcontractor, Freyssinet Australia Pty Ltd, had been engaged to carry out post-tensioning work on site, and its employees used a completed internal concrete stairway to access a locker room in the underground car park levels.
On 10 February 2015, a Freyssinet employee lost his footing on the stairway and fell approximately three metres through a gap beneath the top rail of a temporary timber handrail. The handrail had no intermediate rail, contrary to Australian Standard AS 1657-2013, which required an intermediate rail or fixed mesh to prevent exactly that kind of fall. The worker suffered severe head injuries, spinal injuries, and facial and chest fractures. He remained hospitalised for seven weeks, three of which were in intensive care, and had not returned to work at the time of sentencing.
The principal contractor pleaded guilty to a category 2 offence under the Work Health and Safety Act 2011 (NSW) for breaching its duty as a person conducting a business or undertaking, thereby exposing the worker to a risk of death or serious injury. The maximum penalty was a fine of $1.5 million.
Legal Issues
- What was the objective seriousness of the offence, having regard to the foreseeability and likelihood of the risk materialising, the degree of departure from the required standard, and the gravity of harm?
- What weight should be given to mitigating factors, including the offender's safety systems, co-operation with investigators, remedial steps, remorse, and early guilty plea?
- What fine was appropriate, and what discount should apply for the guilty plea?
- What orders should be made regarding the allocation of the fine and prosecution costs?
Decision
Objective seriousness: The District Court assessed the offence as being of low to moderate objective seriousness. The risk of serious injury from falling through a deficient handrail was obvious, but a top rail did provide some fall protection, and none of the workers using the stairs daily had reported the absence of an intermediate rail to the principal contractor. The offender had not been specifically notified of the hazard, though it was on general notice of risks posed by inadequate edge protection. The departure from the required standard was not substantial, and the relevant fix was simple and inexpensive.
Subjective factors and mitigation: The court identified a number of significant mitigating factors. The offender had implemented an extensive, multi-layered safety management system involving its own employees and subcontractors in hazard identification and reporting. That system had generally been effective: reported hazards had been remedied promptly. The offender responded swiftly after the incident, spending over $200,000 on compliant pre-formed temporary handrails across its sites, updating safe work method statements, and reminding safety officers to assess the entire site rather than focusing only on specific work activities. The court was satisfied the offender had good prospects of rehabilitation and had demonstrated genuine remorse, including enquiring about the injured worker's welfare and facilitating fundraising for him on multiple sites.
Guilty plea discount: An early guilty plea attracted the maximum 25% discount in the applicable range of 10 to 25%, consistent with the principles in R v Thomson & Houlton and R v Borkowski. The plea was treated as both reducing the utilitarian burden on the justice system and as further evidence of remorse.
Penalty: Starting from a base fine of $180,000, the court applied the 25% guilty plea discount to arrive at a final fine of $135,000. Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW).
Orders Made
- The offender was convicted.
- A fine of $135,000 was imposed (reduced by 25% from a starting point of $180,000 to reflect the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's costs in the agreed sum of $27,000.
Key Takeaways
- The District Court treated the absence of an intermediate stair rail, in breach of Australian Standard AS 1657-2013, as a category 2 WHS Act offence of low to moderate objective seriousness, notwithstanding that the risk was obvious and the fix was straightforward.
- Extensive pre-existing safety systems, prompt remediation, and genuine engagement with injury prevention following an incident can carry significant weight in mitigation, even where those systems ultimately failed to prevent harm.
- A 25% guilty plea discount applied where the plea was entered early, consistent with the principle that the earlier the plea, the greater the discount from the available 10 to 25% range.
- Under section 122(2) of the Fines Act 1996, the court may direct that a portion of a WHS Act fine be paid to the prosecutor, and here that portion was set at 50%.
- The court's assessment of moral culpability was reduced because the offender's departure from the standard of a responsible person conducting a business was not found to be substantial, given the breadth and genuine implementation of its safety regime.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)
- Australian Standard AS 1657-2013 (Fixed Platforms, Walkways, Stairways and Ladders)
Cases:
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37