Citation: SafeWork NSW v MPMG FM Pty Limited [2018] NSWDC 377
Court: District Court of NSW
Date: 3 December 2018
Judge: Scotting DCJ
Background
The defendant, a small facilities maintenance company, was engaged as a subcontractor to carry out painting works at a Sydney high school over a 10-week period beginning March 2016. Before work commenced, the company's sole director represented to the principal contractor that an elevated work platform (EWP) would be used for work at heights exceeding 4 metres, and that the company had sufficient qualified staff to erect scaffolding safely.
In practice, neither commitment was honoured. No EWP was ever provided to the site, and the company directed one of its contract painters to erect a mobile scaffold that was missing outriggers and safety pins. That painter held no scaffolding qualification, received no instructions or training for the task, and erected the scaffold to a height exceeding 4 metres without supervision. A second contract painter commenced work on the same site without completing the required site induction or reviewing the safe work method statement (SWMS).
On 28 April 2016, the scaffold collapsed while both painters were working on it. One painter was struck by the falling scaffold and sustained multiple rib fractures, lung contusions, a pneumothorax, lacerations, and broken teeth. The other painter sustained spinal and limb tenderness. Both were hospitalised.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, breached its primary duty under section 19(1) of the Work Health and Safety Act 2011 (WHS Act) by failing to ensure the health and safety of its workers.
- Whether that failure exposed the workers to a risk of death or serious injury, constituting a Category 2 offence under section 32 of the WHS Act (maximum penalty: $1.5 million fine).
- What penalty was appropriate, having regard to the objective seriousness of the offence and relevant aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999.
Decision
The defendant pleaded guilty to the charge. The court accepted the agreed statement of facts and proceeded to sentence, focusing on the appropriate quantum of the fine.
Scotting DCJ assessed the objective seriousness of the offence as significant. The risk was foreseeable and preventable. The company's pre-start representations about using an EWP and qualified scaffolders were not followed through. An unqualified worker erected a scaffold to over 4 metres without outriggers, safety pins, or any supervision. The SWMS itself required a ticketed scaffolder for work at those heights. When the scaffold was positioned on sloped ground, timber offcuts were used to improvise levelling, and no inspection was conducted before use. Both workers were actually injured, which the court treated as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
In mitigation, the court accepted that the defendant had no prior convictions, had cooperated with SafeWork NSW's investigation, had taken genuine remedial steps (including hiring a safety compliance officer, obtaining quality management certification, and demoting the site manager responsible), and had demonstrated genuine remorse. The court was also satisfied that the defendant had good prospects of rehabilitation. The plea of guilty, entered approximately seven months after the first return date following negotiations, was treated as an early plea attracting a 25% discount.
Starting from a fine of $120,000, the court reduced the amount by 25% to arrive at a final penalty of $90,000. Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $90,000 was imposed (reduced by 25% from $120,000 to reflect the guilty plea).
- 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 costs, agreed at $40,000.
Key Takeaways
- A Category 2 WHS offence under section 32 of the Work Health and Safety Act 2011 is established where a duty holder's failure to comply with its primary duty exposes workers to a risk of death or serious injury; actual injury, as occurred here, is an aggravating factor at sentencing.
- The District Court treated the gap between the company's pre-work safety representations and its actual on-site conduct as a significant factor in assessing objective seriousness, reflecting how courts scrutinise whether stated safety systems are genuinely implemented.
- Genuine post-incident remediation, including hiring qualified safety personnel, obtaining management system certification, and restructuring the responsibilities of those who failed in their safety roles, can support findings of good rehabilitation prospects and genuine remorse.
- A guilty plea entered roughly seven months after the first return date, following negotiations, was still characterised as an early plea warranting a 25% discount, consistent with the approach in R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1.
- Under section 122(2) of the Fines Act 1996, courts can direct that a portion of a WHS fine be paid to the prosecuting regulator, a mechanism deployed here to award SafeWork NSW half the total fine.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412