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District Court 5 May 2017

Safe Work (NSW) v WGA Pty Ltd

[2017] NSWDC 92

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 WGA Pty Ltd [2017] NSWDC 92
Court: District Court of New South Wales
Date: 5 May 2017
Judge: Judge AC Scotting

Background

WGA Pty Ltd was a company that acted as builder and principal contractor on a residential and commercial development in Sydney. Its sole director managed and supervised the construction site. The building was situated in close proximity to overhead power lines along King Georges Road, including both lower-voltage lines and upper high-voltage lines owned by Sydney Trains.

From early 2014, SafeWork NSW inspectors visited the site on multiple occasions and issued several prohibition notices requiring WGA to implement proper control measures, including maintaining safe clearance distances from the power lines, installing non-conductive hoarding, and developing a Safe Work Method Statement. Despite repeated warnings and directions, including detailed guidance about the risks of working near high-voltage lines, the required safeguards were not consistently implemented.

A worker, Christopher Cullen, was subsequently exposed to the risk of death or serious injury, and that risk materialised: he suffered burns to approximately 30% of his body, requiring multiple operations and leaving him with ongoing disabilities and unable to return to work.

  • Whether WGA Pty Ltd breached its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 by exposing a worker to a risk of death or serious injury.
  • What penalty was appropriate under section 32 of the Act, given the objective seriousness of the offence, the harm caused, and the absence of the offender at sentencing.
  • Whether mitigating factors, including the absence of prior convictions, reduced the penalty.
  • What weight, if any, should be given to WGA's capacity to pay the fine, in the absence of any evidence from the offender on that issue.

Decision

The court had previously found WGA guilty on 10 April 2017 following a contested hearing. On 5 May 2017, the matter proceeded to sentence with no appearance by or on behalf of WGA, despite the prosecutor having notified the company's director of the listing by express post on multiple occasions.

Judge Scotting assessed the objective seriousness of the offence as substantial. The risk of death or serious injury from working near high-voltage power lines was well-known and had been specifically communicated to WGA's director by the SafeWork inspector in plain terms. The failure to act on repeated warnings and prohibition notices, and the absence of proper physical barriers or safe work method documentation, demonstrated a significant departure from the required standard of care.

The court found the harm caused to be an aggravating factor. Burns to 30% of the body with lasting disability and an inability to return to work represented a serious outcome that went beyond the minimum required to establish the offence. The vulnerability of workers on a site where the risks were known and had been flagged by regulators reinforced the seriousness of the conduct.

In mitigation, the court noted WGA had no prior convictions. No evidence was placed before the court regarding WGA's capacity to pay, and the court was not prepared to reduce the fine on that basis in the absence of such evidence. General and specific deterrence both supported a very substantial financial penalty.

Orders Made

  • WGA Pty Ltd convicted of the offence contrary to section 32 of the Work Health and Safety Act 2011.
  • Fine of $1,000,000 imposed.
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ($500,000) to be paid to the prosecutor (SafeWork NSW).
  • WGA Pty Ltd ordered to pay the prosecutor's costs in the fixed sum of $50,460.90.

Key Takeaways

  • The District Court imposed a $1 million fine, out of a maximum of $1.5 million, reflecting the high objective seriousness of a work health and safety breach involving high-voltage power lines where repeated regulatory warnings were ignored and a worker suffered severe, lasting injuries.
  • Where an offender seeks a reduction in fine based on limited capacity to pay, the evidentiary onus rests on the offender to place that material before the court. In the absence of any such evidence, the court declined to reduce the penalty on that basis, following Jahandideh v R [2014] NSWCCA 178.
  • Under section 122(2) of the Fines Act 1996, the court has power to direct that a portion of a fine be paid to the prosecuting authority, and did so here, ordering 50% to be paid to SafeWork NSW.
  • Actual harm caused to a worker operates as an aggravating factor in sentencing for work health and safety offences. The offence under section 32 is established by exposing a person to a risk of death or serious injury, but where that risk materialises and causes serious harm, the sentencing court treats the outcome as more serious than an offence involving risk alone.
  • An offender's failure to appear at sentencing proceedings does not prevent the court from proceeding to impose sentence, provided the offender has been given reasonable notice of the listing.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e)
- Fines Act 1996 (NSW), s 122(2)
- Environmental Planning and Assessment Act 1979 (NSW)
- Code of Practice: Working Near Overhead Power Lines

Cases
- R v Youkhana [2004] NSWCCA 412
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37