Citation: SafeWork NSW v Deicorp Pty Ltd [2018] NSWDC 251
Court: District Court of New South Wales
Date: 14 September 2018
Judge: Strathdee DCJ
Background
The offender, a principal contractor, was engaged to construct a residential complex at Ashfield. It subcontracted formwork and concrete services to a company, which in turn engaged further subcontractors without the principal contractor's knowledge. One of those downstream workers, a formwork labourer with only about nine days' experience at the site, was working on level 3 of the building on 12 January 2016.
While stripping formwork at the southern edge of the building, the worker stepped onto an unsecured plywood board placed between the concrete slab and the perimeter scaffold. The board gave way and he fell from level 3 to level 1. He was taken to Royal Prince Alfred Hospital, underwent surgery, and was discharged ten days later. His victim impact statement recorded significant physical, emotional, and financial consequences.
The principal contractor was charged under section 32 of the Work Health and Safety Act 2011 (NSW), which criminalises a failure to comply with a health and safety duty under section 19(1) where that failure exposes an individual to a risk of death or serious injury. The maximum penalty for a corporation under that provision is $1,500,000.
Legal Issues
- Whether the offender's failures constituted a breach of its primary duty to ensure the health and safety of workers under section 19(1) of the Work Health and Safety Act 2011
- What penalty was appropriate having regard to the objective seriousness of the offence
- What weight should be given to mitigating factors, including the guilty plea, the offender's good character, community involvement, and absence of prior convictions
- What aggravating factors applied, particularly the severity of the injuries sustained
- Whether prosecution costs should be ordered, and in what amount
Decision
The offender pleaded guilty on the second return date. The court accepted the Agreed Statement of Facts, which disclosed that the penetrations between the slab and the scaffold were left without edge protection, exclusion zones, or secure covers at the time of the incident. The court also noted that as early as November 2015, the site's scaffold engineer had emailed the offender's foreman recommending temporary handrails to address exactly this type of fall hazard. The foreman did not respond to that email and later went on leave without remedying the identified risk.
The court found that the failure to inspect the penetration area was a significant departure from the obligations imposed by the legislation. Had anyone simply lifted the plywood cover, the unsecured and dangerous condition would have been immediately apparent. The court treated this straightforward oversight, which a basic inspection would have caught, as bearing on the objective seriousness of the offence.
On aggravating factors, the court noted the serious injuries and their sequelae as required by section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. The offender's ignorance of the further subcontracting did not diminish its responsibility to monitor who was on site and ensure safe systems were in place. On mitigating factors, the court accepted the early guilty plea, the absence of prior offences, demonstrated remorse and contrition, and the offender's longstanding record of community and charitable involvement. A 25% discount was applied to reflect the utilitarian value of the plea.
Applying the totality principle and weighing all relevant factors, the court arrived at a base fine of $100,000, reduced to $75,000 after the plea discount.
Orders Made
- The offender was convicted of the charge under section 32 of the Work Health and Safety Act 2011.
- A fine of $75,000 was imposed (base fine of $100,000, reduced by 25% for the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A principal contractor's duty under section 19(1) of the Work Health and Safety Act 2011 extends to workers engaged through subcontractors, even where further subcontracting occurred without the principal contractor's knowledge and contrary to the terms of its contracts.
- Ignorance of exactly who is performing work on a site does not reduce the principal contractor's obligation to maintain safe systems, conduct adequate inspections, and respond to identified hazards.
- The District Court treated a failure to act on a written, documented warning from a qualified engineer as a significant aspect of the offence's objective seriousness, even though the breach itself involved a straightforward physical oversight.
- Where a corporation demonstrates remorse, absence of prior convictions, and genuine community engagement, these remain relevant mitigating factors in WHS sentencing, but they do not displace the need for general deterrence in the penalty.
- An early guilty plea attracted a 25% discount on the fine, consistent with established sentencing principles regarding the utilitarian value of such pleas.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 7, 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- 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
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No 5) [2009] NSWSC 432
- Veen v R (No 2) (1988) 164 CLR 465