Citation: SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Court: District Court of New South Wales
Date: 14 December 2018
Judge(s): Russell SC DCJ
Background
A construction company, Grandcity Constructions Pty Ltd, was engaged to build a three-storey residential boarding house in Strathfield, NSW. The company employed a 55-year-old casual cleaner, Mr Wang, who had no prior construction industry experience, no Construction Induction White Card, and spoke only a regional Mandarin dialect that the site foreman could not fully understand.
On 10 September 2016, near the end of his shift, Mr Wang was directed by the director and foreman (Mr Cai) to return to the first floor of the building to clean up discarded bricks. The first-floor balcony had no temporary edge protection installed, and Mr Wang was not wearing any fall-protection equipment. A timber pallet fell over the unprotected balcony edge, and Mr Wang fell approximately three metres onto a concrete slab below, landing on his head and upper body.
Mr Wang suffered serious injuries including a spinal fracture, fractured wrist, fractured nose, rib fractures, renal laceration, and amnesia. He was hospitalised for eight days and has not returned to work. Both the company and Mr Cai pleaded guilty to their respective work health and safety offences.
Legal Issues
- What constituted the appropriate penalty for Grandcity Constructions as a person conducting a business or undertaking (PCBU) that failed its duty under s 19 of the Work Health and Safety Act 2011 (WHS Act), contrary to s 32?
- What constituted the appropriate penalty for Mr Cai as an officer who failed to exercise due diligence to ensure the company's compliance with its WHS duty, contrary to ss 27 and 32 of the WHS Act?
- What weight should be given to mitigating factors (including early guilty pleas, remorse, and cooperation) against the objective seriousness of the offences?
- How should the principles of general and specific deterrence be applied in sentencing for falls-from-height WHS offences?
Decision
The court assessed the objective seriousness of the offences as falling within the mid-range. The failures were significant: no temporary edge protection had been installed on the balcony despite the availability of detailed guidance from the SafeWork Australia Code of Practice and the WorkCover Code of Practice, both of which required duty holders to eliminate or minimise fall risks. The risk of death or serious injury from an unprotected three-metre edge was plainly foreseeable. The court also noted the vulnerability of Mr Wang, who was inexperienced, lacked the required induction card, and faced genuine communication barriers with his supervisor.
The court considered several mitigating factors, including early guilty pleas (attracting a 25% discount), expressions of remorse and contrition, cooperation with investigators, no prior offending history, and steps taken after the incident to improve safety practices. Against these, the court weighed the aggravating circumstance that Mr Cai had directed Mr Wang back to the unprotected work area shortly before the fall occurred.
On general deterrence, the court observed that prosecutions for falls from height in the construction industry remain prevalent, and that this factor carries significant weight in WHS sentencing. The court referred to established authority that even where an offender has limited means, a substantial fine may still be warranted by the seriousness of the offence and the need to deter others.
Applying the totality principle across the related charges, the court determined the appropriate base fines to be $160,000 for Grandcity and $32,000 for Mr Cai, each reduced by 25% for their early guilty pleas.
Orders Made
Grandcity Constructions Pty Ltd (s 19 WHS Act):
- Convicted of the offence
- Fined $120,000 (reduced from $160,000 by 25% for the early guilty plea)
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996
- Ordered to pay agreed prosecution costs of $45,000
Mr Cai (s 27 WHS Act):
- Convicted of the offence
- Fined $24,000 (reduced from $32,000 by 25% for the early guilty plea)
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996
- Ordered to pay agreed prosecution costs of $45,000
Note: Both offenders were ordered to pay the $45,000 costs amount, but the prosecutor is entitled to recover only $45,000 in total.
Key Takeaways
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The District Court confirmed that the vulnerability of a worker, including inexperience, lack of required credentials, and language barriers that impede communication of safety instructions, is a relevant factor in assessing the objective seriousness of a WHS offence.
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A conviction under s 32 of the WHS Act does not require that injury actually occur; exposure to a risk of death or serious injury is sufficient. The unprotected balcony edge created that risk independently of whether the fall eventuated.
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General deterrence carries particular weight in WHS sentencing for falls from height in construction, given the ongoing prevalence of such prosecutions. The court reaffirmed that a substantial fine may be imposed even where mitigating factors are present.
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Under s 27 of the WHS Act, a company director or officer can be held personally liable for failing to exercise due diligence to ensure the company met its own WHS duty, and that personal liability attracts a separate penalty up to $300,000.
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Early guilty pleas attracted a 25% sentencing discount, consistent with established principles, and post-incident remediation, cooperation, and genuine remorse were all treated as mitigating factors, though none displaced the need for a meaningful financial penalty.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Work Health and Safety Regulation 2011 (NSW), cll 34-38
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Codes of Practice and Standards:
- SafeWork Australia, Managing the Risk of Falls at Workplaces Code of Practice
- WorkCover, Preventing Falls in Housing Construction Code of Practice
- Australian/New Zealand Standard 4994.1:2009 on Temporary Edge Protection
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
- Jahandideh v R [2014] NSWCCA 178
- 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 Irvine; R v Dynamic Industries Pty Limited [2000] VSCA 239
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Opcon Plumbing Pty Limited [2018] NSWDC 350
- SafeWork NSW v Ru Dong Li [2018] NSWDC 189
- Veen v R (No. 2) (1998) 164 CLR 465