Citation: SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous [2018] NSWDC 350
Court: District Court of New South Wales
Date: 23 November 2018
Judge: Scotting DCJ
Background
A small plumbing and roofing business was engaged to replace asbestos cement roof sheeting and install new safety mesh at a commercial warehouse in Greenacre, NSW. During the work, the old safety mesh beneath the roof was cut and left unattached to any purlin, removing its function as a fall prevention measure. Workers were required to walk on the existing corrugated roof sheets, some of which were weathered and brittle.
On 31 January 2016, a 61-year-old employee with 42 years of experience as a plumber was walking across a section of the roof when a sheet gave way beneath him. He was not wearing a harness at the time. He fell 8.7 metres through the roof onto a concrete floor below and was pronounced dead at the scene.
The company and its sole director each pleaded guilty to separate offences under the Work Health and Safety Act 2011. SafeWork NSW prosecuted both the company, as a person conducting a business with a duty to ensure worker safety, and the director, as an officer of that company who had his own duty of due diligence.
Legal Issues
- What was the appropriate sentence for a company convicted of failing to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011, resulting in a worker's death?
- What was the appropriate sentence for the company's sole director convicted of failing to comply with his duty as an officer under section 27(1) of the same Act?
- How should the court assess objective seriousness, mitigating factors (including plea, remorse, cooperation, and character), and capacity to pay when determining the level of fine?
Decision
Scotting DCJ assessed the objective seriousness of both offences. The risk of fatal injury from falling through an unsecured roof was foreseeable, and the safety controls available, such as ensuring the mesh remained secured and enforcing harness use, were straightforward and inexpensive. The court noted that the safety mesh had been cut and left unattached, that the worker was not wearing his harness, and that the anchorage points on the adjacent building were too far away to be practical. These failures combined to leave the worker with no effective fall protection.
The court accepted a number of mitigating factors in favour of both offenders. Both entered early guilty pleas, attracting a 25% discount. The company had no prior record of WHS incidents reported to SafeWork. The director gave evidence of genuine distress, had worked alongside the deceased for approximately 24 years and considered him a friend, and cooperated fully with the SafeWork investigation. His cooperation was confirmed by the investigating inspector, who observed him to be consistently distressed and forthcoming. These factors pointed to genuine remorse and good prospects of rehabilitation.
Capacity to pay was addressed in the context of the company being a small business with around four or five employees. The director drew a gross wage of approximately $50,000 per year. The company's assets were tied up in its operations rather than being liquid. The court was satisfied that both offenders had demonstrated a limited capacity to pay, and took into account the agreed prosecution costs of $35,000 in calibrating the fines, consistent with the Court of Criminal Appeal's approach in EPA v Barnes.
The court convicted both offenders. The base fine for the company was set at $100,000 (from a maximum of $1.5 million), reduced to $75,000 after the guilty plea discount. The base fine for the director was set at $10,000 (from a maximum of $300,000), reduced to $7,500 after discount. Half of each fine was ordered to be paid to the prosecutor under section 122(2) of the Fines Act 1996.
Orders Made
- Opcon Plumbing Pty Ltd convicted and fined $75,000, with 50% payable to the prosecutor.
- Houssam Annous convicted and fined $7,500, with 50% payable to the prosecutor.
- Both defendants ordered to pay the prosecutor's agreed costs of $35,000.
Key Takeaways
- The District Court confirmed that where straightforward and low-cost safety controls were available but not implemented, and a worker died as a result, the objective seriousness of a WHS offence is significant even where the offender has no prior record.
- A guilty plea, genuine remorse, cooperation with investigators, and good character are all available as mitigating factors in WHS sentencing, and here collectively supported a 25% discount and fines well below the statutory maximum.
- Under section 27(1) of the Work Health and Safety Act 2011, a company officer carries a personal duty of due diligence separate from the company's duty, and can be convicted and fined independently of the corporate penalty.
- Capacity to pay is a relevant but not decisive consideration: a court may still impose a substantial fine for a serious WHS offence, and agreed prosecution costs are a proper factor to weigh when both the company and its director have demonstrated limited financial means.
- Concurrent operation of harness requirements and secured safety mesh were identified as distinct, complementary controls. The failure of both simultaneously, not merely one, contributed to the worker's death and informed the court's assessment of the overall failure.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 21A(3)(m)
- Fines Act 1996 (NSW), sections 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Environmental Protection Agency v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412