Citation: Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19
Court: District Court of New South Wales
Date: 20 February 2018
Judge: Judge AC Scotting
Background
The defendant, a residential property developer, owned and was developing a site at Doonside where a formwork deck was being constructed as the podium level for a two-storey apartment complex. The developer engaged a chain of contractors and subcontractors to carry out the formwork and concreting, while retaining overall supervisory responsibility through its own Construction Manager and Cadet Engineers.
A surveyor's assistant attended the site on 16 February 2015 to carry out surveying work on the completed northern section of the deck. The site supervisor permitted access but then left the site for lunch without completing a proper induction. While moving across the deck, the worker encountered a sheet of unmarked plywood that was visually indistinguishable from the surrounding deck material. Unknown to him, it covered a 970mm by 350mm penetration. He removed what he took to be a spare piece of plywood, fell four metres through the void, and became impaled on upright concrete reinforcing bars below.
The worker sustained a puncture wound to his right buttock, a fractured pelvis, and three spinal fractures, along with significant blood loss requiring a transfusion. He later returned to work on restricted duties. The developer pleaded guilty to failing to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury contrary to section 32 of that Act.
Legal Issues
- What was the appropriate level of objective seriousness of the offence?
- What aggravating and mitigating factors applied in determining the sentence?
- What fine was appropriate, including the proper discount for the guilty plea?
- Whether the harm sustained by the injured worker constituted a substantial aggravating factor within the meaning of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
Decision
Objective seriousness: Judge Scotting assessed the offence as of moderate-to-serious objective gravity. The risk of falling through an inadequately protected penetration was obvious, well-known in the industry, and the protective measures prescribed in the Safe Work Australia Guide to Formwork were simple, inexpensive, and readily available. The failure operated at multiple levels: subcontractor Safe Work Method Statements assumed knowledge of the Guide rather than setting out procedures clearly, and the developer's own site personnel failed to identify and rectify the inadequate cover despite being specifically tasked with hazard inspections.
Aggravating factors: The court was satisfied beyond reasonable doubt that the harm caused was substantial within the meaning of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Applying the standard from R v Youkhana, the injury must be shown to be greater or more deleterious than ordinarily expected for an offence that requires only the creation of a risk, not an actual injury. The nature and severity of the worker's injuries satisfied that threshold. The court did not make a finding on whether the plywood cover had been secured, as the plea was entered on amended facts that left that question open.
Mitigating factors: Several mitigating factors reduced the penalty. The developer had no prior convictions, had taken substantial post-incident steps to improve its safety systems (including formalising a penetration cover procedure, increasing subcontractor supervision, and expanding its safety team to eight officers), and had demonstrated genuine remorse through its director's affidavit. The developer also cooperated with the Safe Work investigation. The court was satisfied of good prospects of rehabilitation.
Penalty: Starting from a base fine of $180,000, the court applied a 25% discount for the guilty plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski, which recognise both the utilitarian value of early pleas and their evidential value on remorse. The resulting fine was $135,000. Half of that amount was directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996, and costs were ordered as agreed or assessed.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $135,000 was imposed (reduced from a base fine of $180,000 by a 25% guilty plea discount).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A developer retaining overall supervisory control of a construction site carries a non-delegable health and safety duty under section 19(1) of the Work Health and Safety Act 2011; that duty is not discharged merely by engaging experienced subcontractors or requiring them to submit Safe Work Method Statements.
- Under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, proof of substantial harm as an aggravating factor requires satisfaction beyond reasonable doubt that the harm exceeded what would ordinarily be expected for the offence. Because a section 32 offence requires only the creation of a risk (not an injury), serious actual injuries will readily meet that elevated threshold.
- The District Court confirmed that inadequate protection of formwork penetrations represents a well-known and serious industry hazard; the availability of simple, low-cost industry guidance (such as the Safe Work Australia Guide to Formwork) weighs against the offender when assessing objective seriousness.
- Post-incident remediation, genuine remorse, cooperation with investigators, and no prior convictions each operated as mitigating factors, collectively contributing to a base fine set well below the $1.5 million statutory maximum.
- A 25% discount for a guilty plea was applied, reflecting both the utilitarian value of the plea in saving court resources and its corroborative weight on the question of remorse, consistent with the Court of Criminal Appeal's approach in R v Thomson and Houlton and R v Borkowski.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 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), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1