Citation: SafeWork NSW v Rock Form Group Pty Ltd [2018] NSWDC 252
Court: District Court of New South Wales
Date: 14 September 2018
Judge: Strathdee DCJ
Background
The defendant was a formwork subcontractor engaged to supply and install formwork at a five-storey residential construction site in Ashfield, NSW. It had in turn subcontracted the work to a further company, whose own subcontractor employed the injured worker. The defendant held primary responsibility under its contract for installing and maintaining fall protection measures at the site.
On 12 January 2016, the injured worker was stripping formwork on level 3 of the building. He stepped onto an unsecured plywood board covering a gap between the concrete slab and the scaffold. The board gave way and he fell from level 3 to level 1, sustaining serious injuries that required surgery and hospitalisation for approximately ten days.
The prosecution arose under the Work Health and Safety Act 2011 (NSW). SafeWork NSW charged the defendant with failing to comply with its primary duty as a person conducting a business or undertaking (PCBU) to ensure, so far as reasonably practicable, the health and safety of workers, contrary to section 32 of that Act. The defendant pleaded guilty on the first day of what had been listed as a ten-day trial.
Legal Issues
- What was the appropriate sentence for a corporation convicted under section 32 of the Work Health and Safety Act 2011, where a worker sustained serious injuries from a fall?
- How should the court assess the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the late guilty plea, absence of prior convictions, and demonstrated contrition?
- What discount was appropriate for the guilty plea, given it was entered on the first day of trial after witnesses had already attended court?
- What aggravating factors applied, and how did they affect the penalty?
Decision
The District Court assessed the offence as involving a significant departure from the obligations imposed by the legislation. The risk was obvious and the remedy straightforward: had the plywood cover been lifted and inspected, the hazard would have been apparent. The defendant failed to carry out even that basic step. The court noted that this failure was not merely a technical breach, but one that directly caused a worker to sustain serious injuries.
The court identified the aggravating factors as the significant injuries sustained by the worker and their serious sequelae, as required by section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. In mitigation, the court accepted the defendant had no prior convictions, had demonstrated genuine contrition and remorse, and had implemented changes to its management practices following the incident. The likelihood of reoffending was assessed as small.
On the guilty plea discount, the court allowed 15%. Although a guilty plea ordinarily warrants a meaningful discount reflecting the utilitarian value of the plea, the lateness of this plea reduced that benefit. Witnesses had already attended court and the plea came at the start of a ten-day trial, rather than at an early opportunity.
On deterrence, the court applied the principles from Capral Aluminium, confirming that both general and specific deterrence should normally be given substantial weight in work health and safety sentencing. The court found no exceptional circumstances that would justify departing from that approach.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $150,000 was imposed, reduced by 15% for the guilty plea to $127,500.
- Pursuant to section 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 and disbursements of $62,500.
Key Takeaways
- A late guilty plea, entered on the first day of a listed trial after witnesses had attended, attracted only a 15% discount rather than the higher discount available for early pleas, reflecting the reduced utilitarian value to the court and the prosecution.
- Under the Work Health and Safety Act 2011, a PCBU's duty extends to workers engaged through a chain of subcontracting, not only to direct employees. The defendant was responsible for a worker employed by its sub-subcontractor because the defendant could influence or direct that worker's activities.
- Serious injuries sustained by the worker and their sequelae constituted aggravating factors under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, and were required to be taken into account in sentencing.
- Applying Capral Aluminium, both general and specific deterrence should ordinarily be given substantial weight in work health and safety prosecutions, and departures from that principle are expected to be very rare.
- Post-incident changes to management practices and evidence of genuine contrition can be treated as mitigating factors, though they do not displace the significance of deterrence in this category of offence.
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:
- 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
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432