Citation: Safe Work NSW v Co-Wynn Building Contractors Pty Ltd [2018] NSWDC 61
Court: District Court of New South Wales
Date: 26 March 2018
Judge: Judge AC Scotting
Background
The defendant was a family-owned commercial construction company engaged as principal contractor on a school building project in Sydney. In June 2015, a second-year apprentice carpenter was working with a licensed carpenter and a site manager to install a service walkway inside roof trusses approximately three metres above a concrete floor.
After the licensed carpenter left the site and the site manager stepped away to order materials, the apprentice was found on the concrete floor below the platform he had been installing. He was taken to hospital with serious head injuries, placed in an induced coma, and died on 5 July 2015.
The company was prosecuted by Safe Work NSW. It pleaded guilty to a single offence under the Work Health and Safety Act 2011: as a person with a health and safety duty, it failed to comply with that duty and exposed the apprentice to a risk of death or serious injury.
Legal Issues
- What was the appropriate fine for a guilty plea to a category 2 offence under s 32 of the Work Health and Safety Act 2011, where the maximum penalty is $1.5 million?
- What discount, if any, applied to the penalty given the timing of the guilty plea?
- What weight should be given to mitigating factors including the company's prior safety record, post-incident remediation, remorse, and cooperation?
- Whether victim impact statements from the deceased's family could be considered in determining the appropriate penalty.
Decision
Judge Scotting assessed the objective seriousness of the offending as moderately serious. The company failed to have a Safe Work Method Statement (SWMS) covering the specific roof truss work, despite such a document being required under cl 299(1) of the Work Health and Safety Regulation 2011 for any task involving a fall risk greater than two metres. An existing SWMS from December 2014 required fall arrest systems and restricted the task to competent workers, but had never been shown to or signed by the apprentice. The apprentice was not a competent person within the relevant Code of Practice, yet he was left to work unsupervised in the roof truss.
On mitigating factors, the court accepted that the company had operated in the construction industry since 1954 without prior incident, held relevant safety certifications, and had a genuine commitment to apprentice training. Following the incident, the company strengthened its systems considerably, including mandatory SWMS sign-offs, continuous supervision of apprentices working at heights, mandatory training courses for managers, and the appointment of a dedicated WHS Officer at significant ongoing cost.
The court was satisfied the company had demonstrated genuine remorse and contrition through evidence given by its sole director, and that it had good prospects of rehabilitation. The company also cooperated with the SafeWork investigation. These factors weighed in its favour at sentencing.
The guilty plea was entered late, first indicated only a few days before the matter was listed for trial. Consistent with the principles in R v Thomson & Houlton and R v Borkowski, the court applied a 10% discount to reflect the utilitarian value of the plea. The court also accepted that victim impact statements from the deceased's family were appropriately considered as evidence of harm to the community under s 28(4) of the Crimes (Sentencing Procedure) Act 1999. The pre-discount fine was set at $450,000, reduced to $405,000 after the plea discount was applied.
Orders Made
- The defendant was convicted of the offence.
- A fine of $405,000 was imposed (being $450,000 reduced by 10% for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (Safe Work NSW).
- The defendant is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A failure to prepare a SWMS for high-risk construction work, combined with leaving an inexperienced and unqualified apprentice unsupervised at height, was assessed as moderately serious under the Work Health and Safety Act 2011, even where a principal contractor had a generally sound safety culture.
- Under ss 19(1) and 32 of the Work Health and Safety Act 2011, a principal contractor's duty extends to ensuring that any worker exposed to a risk of death or serious injury is covered by appropriate safe work documentation and adequate supervision, regardless of whether that worker is directly employed by the contractor.
- A late guilty plea, indicated only days before trial, attracted a discount of only 10%, consistent with the principle that the earlier the plea, the greater the discount.
- Post-incident remediation, sustained over time and at genuine cost, was treated as evidence of both good prospects of rehabilitation and genuine remorse, and carried meaningful weight in mitigation at sentencing.
- Victim impact statements from a deceased worker's family were admitted and considered as evidence of harm to the community, not merely as statements going to personal loss.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cl 299(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 28(4)
- Fines Act 1996 (NSW), s 122(2)
- Managing Risks of Falls at Workplaces Code of Practice 2011
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 Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412