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District Court 29 March 2018

SafeWork NSW v Freyssinet Australia Pty Ltd

[2018] NSWDC 66

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY RISK OF DEATH OR SERIOUS INJURY FALL FROM STAIRWELL EDGE SENTENCE OBJECTIVE SERIOUSNESS

Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66
Court: District Court of New South Wales
Date: 29 March 2018 (addendum 10 May 2018)
Judge: Kearns DCJ

Background

Freyssinet Australia Pty Ltd, a large specialist construction contractor operating across multiple Australian states, was prosecuted by SafeWork NSW following a serious workplace incident on 10 February 2015. A worker, Mr Felemi, fell from a staircase on a construction site and suffered severe brain injury. The staircase had an inadequate railing: there was a gap between the railing and the landing that created a fall hazard.

The offence concerned Freyssinet's failure to identify the inadequate edge protection on the staircase and to either require the principal contractor (Karimbla) to fix it, or instruct its workers not to use the staircase until it was properly guarded. The staircase was a common access route used by all workers on site, leading to the lunchroom and toilets.

Freyssinet had been found guilty on 27 October 2017 of a Category 2 offence under section 32 of the Work Health and Safety Act 2011. The sentencing hearing followed. The maximum penalty for a Category 2 offence is a fine of $1,500,000.

  • What was the appropriate level of objective seriousness of the offence?
  • What weight should be given to Freyssinet's pre-incident attitude to safety and its post-incident remediation steps?
  • What aggravating and mitigating factors applied under the Crimes (Sentencing Procedure) Act 1999?
  • How should general and specific deterrence be weighed in determining the penalty?
  • What costs orders were appropriate given amendments to the summons during proceedings, including the later withdrawal of an allegation relating to a safe work method statement?

Decision

Objective seriousness: Kearns DCJ placed the offence at the upper end of the low range of objective seriousness. While the risk of a fall, if it materialised, carried potentially fatal consequences, the likelihood of it occurring was slight. Critically, the hazard had been missed not only by Freyssinet but by all 43 or more subcontractors on site, with workers passing the staircase over 200,000 times in six months without anyone identifying the danger. The court acknowledged this as a kind of collective "blind spot," which, while not excusing Freyssinet, informed the overall assessment of culpability.

Attitude to safety: The court gave significant weight to Freyssinet's exemplary pre-incident safety culture. The company had comprehensive safety systems in place, spent over $1.8 million annually on safety at the time of the incident, and had no prior convictions across decades of high-risk construction work in multiple jurisdictions. Kearns DCJ noted that a defendant with a cavalier attitude to safety commits an objectively more serious offence than one with a conscientious approach, and Freyssinet's conduct fell firmly in the latter category. The staircase hazard appeared to result from something in the implementation of an otherwise meticulous safety system, rather than systemic indifference.

Post-incident conduct: Since the incident, Freyssinet increased its annual safety spending to nearly $2.5 million, strengthened its hazard identification and reporting culture, trained its workforce on mid-rail requirements for stairwells, and changed its tendering practices. The court took specific deterrence into account only to a minor degree given this conduct. General deterrence, however, remained relevant: the building industry as a whole must understand that failures of safety attract real consequences.

Penalty and costs: Kearns DCJ convicted Freyssinet and imposed a fine of $80,000, with a moiety (half the fine) to be paid to the prosecutor, as required by legislation. On costs, the court found that the withdrawal of the safe work method statement allegation during proceedings meant Freyssinet was entitled to recover any costs wasted in preparing to defend that specific allegation. Otherwise, Freyssinet was ordered to pay the prosecutor's costs.

Orders Made

  • Freyssinet Australia Pty Ltd was convicted of the Category 2 offence.
  • Freyssinet was fined $80,000, with a moiety payable to the prosecutor.
  • Freyssinet was ordered to pay the prosecutor's costs, excluding costs attributable to the inclusion and later withdrawal of the safe work method statement allegation.
  • The prosecutor was ordered to pay Freyssinet's costs wasted by reason of that withdrawn allegation.
  • Costs were to be agreed or otherwise assessed.
  • An addendum of 10 May 2018 amended the costs orders under the slip rule to clarify the netting arrangement between the parties' respective costs attributable to the withdrawn allegation.

Key Takeaways

  • A defendant's pre-incident attitude to workplace safety is a relevant factor in assessing the objective seriousness of a WHS offence. The District Court held that a cavalier approach to safety renders an offence objectively more serious, while a conscientious approach to safety operates in mitigation.

  • Where a hazard is missed by an entire workforce, including multiple subcontractors with their own safety obligations, across an extended period, this can inform (though not excuse) an assessment of a particular defendant's culpability under the WHS framework.

  • Significant and genuine post-incident remediation, combined with a strong pre-incident safety record and no prior convictions, can substantially reduce the weight given to specific deterrence at sentencing, even where general deterrence remains a relevant sentencing purpose.

  • A fine of $80,000 was imposed against the maximum of $1,500,000 for a Category 2 WHS offence, reflecting the upper end of low-range objective seriousness, strong mitigating factors, and the defendant's overall safety record. This represents less than six percent of the maximum penalty.

  • Partial withdrawal of allegations in a summons during WHS proceedings can give rise to a costs order in the defendant's favour for wasted preparation costs, even where the defendant is ultimately found guilty and ordered to pay the prosecutor's costs in all other respects.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 32, 239
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Butters v R [2010] NSWCCA 1
- SafeWork NSW v Karimbla Constructions Services NSW Pty Ltd [2017] NSWDC 68
- SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169
- Page v Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39
- Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312
- Postigliano v The Queen (1996-7) 189 CLR 295
- R v Ingrassia (1997) 41 NSWLR 447