Citation: SafeWork NSW v Ru Dong Li [2018] NSWDC 189
Court: District Court of New South Wales
Date: 13 July 2018
Judge: Russell SC DCJ
Background
The defendant operated a sole trading business installing security cameras and CCTV systems. In June 2016, he engaged a casual worker, Mr Liang Ying Zhang, to assist with a security camera installation at a smash repair workshop in Smithfield. It was only the third day Mr Zhang had worked for the defendant.
During the installation of the fourth camera of the day, Mr Zhang climbed an extension ladder inside the workshop and used a heavy battery-powered hammer drill (approximately 4.5 kg) to bore through a double brick wall. The defendant left the area to set up a second ladder outside. When he returned, he found Mr Zhang unconscious on the concrete floor below. Mr Zhang had fallen approximately 2.4 metres.
Mr Zhang sustained a broken jaw, shoulder, and hip, along with severe head injuries. He was pronounced brain dead at Westmead Hospital and passed away the following day after his family agreed to withdraw life support. He was 58 years old.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, failed to comply with his primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (WHS Act), thereby exposing a worker to a risk of death or serious injury contrary to s 32 of the Act
- What penalty was appropriate, having regard to the objective seriousness of the offence, mitigating and aggravating factors, the plea of guilty, and the need for general and specific deterrence
- Whether the defendant had the capacity to pay a substantial fine
- The appropriate order for prosecution costs
Decision
The defendant pleaded guilty to the Category 2 offence under s 32 of the WHS Act. Russell SC DCJ assessed the objective seriousness of the offence as lying in the mid-range. The work constituted high-risk construction work under the WHS Regulation 2011, yet no documented risk assessment or Safe Work Method Statement had been prepared. The defendant had not considered safer alternatives such as a mobile scaffold or elevated work platform, both of which were available at modest daily hire costs and would have been permitted by the premises owner had they been requested.
The court identified several specific failures. The defendant directed an inadequately trained casual worker to use a heavy two-handed power drill on a ladder, in circumstances that made maintaining three points of contact with the ladder extremely difficult. The defendant also left the area while Mr Zhang was working at height, abandoning his supervisory role at the critical moment.
In mitigation, the court accepted the defendant's early plea of guilty, his co-operation with investigators, his lack of prior convictions, his genuine remorse, and his implementation of improved safety practices following the incident. The court acknowledged that small business operators are frequently prosecuted for falls from heights, and that general deterrence carried considerable weight in this category of offending.
On capacity to pay, the defendant argued limited cash flow, but the court noted he held two investment properties. The court declined to moderate the fine on capacity grounds, finding the defendant had the means to meet the penalty if necessary through the realisation of an asset.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011
- The defendant was fined $60,000 (reflecting a base fine of $80,000 reduced by 25% for the guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW)
- The defendant was ordered to pay the prosecutor's agreed costs of $30,000
Key Takeaways
- The District Court confirmed that failing to conduct a documented risk assessment, failing to provide adequate training to a casual worker, and abandoning supervision while that worker performed high-risk work at height collectively placed a Category 2 WHS offence in the mid-range of objective seriousness.
- A guilty plea reduced the base fine by 25 percent, consistent with the sentencing principles in R v Thomson & Houlton, recognising the utilitarian value of the plea and the defendant's evident remorse.
- Under s 6 of the Fines Act 1996, the evidentiary onus falls on a defendant seeking a reduction in fine for limited capacity to pay. Ownership of investment properties, even with mortgages, was sufficient for the court to find capacity without moderating the penalty.
- Prevalence of workplace falls from ladders weighed heavily in favour of general deterrence, reinforcing that courts in this jurisdiction treat ladder-related fatalities as a category of offending warranting meaningful penalties regardless of the small scale of the business involved.
- Safer and readily available alternatives to ladder use, including mobile scaffolds and elevated work platforms at comparatively low hire costs, are a relevant consideration when assessing whether an offender took reasonably practicable precautions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cl 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), ss 6, 122(2)
- Australian Standard AS/NZS 1892 (Portable Ladders)
- Managing the Risk of Falls at Workplaces: Code of Practice (December 2011)
Cases
- Baumer v R (1998) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Jahandideh v R [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- R v Borkowski (2009) 195 A Crim R 1
- R v McNaughton (2006) 66 NSWLR 566
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Veen v R (No. 2) (1998) 164 CLR 465