Citation: SafeWork NSW v LendLease Building Pty Limited [2018] NSWDC 99
Court: District Court of New South Wales
Date: 20 April 2018
Judge: Russell SC DCJ
Background
LendLease Building Pty Limited was the principal contractor on the Barangaroo South construction site in Sydney, where two residential towers were under construction. It had engaged a subcontractor, Erect Safe Scaffolding (NSW) Pty Limited (ESS), to supply and erect scaffolding on site. One of ESS's workers, who did not hold a valid high risk work licence for forklift operation, was directed by his ESS supervisors to operate a forklift on the day of the incident.
On 8 August 2015, that unlicensed ESS worker was driving a forklift carrying a load of approximately 160 metal scaffolding tubes weighing around two tonnes. The load was 1.8 metres high and obstructed his forward view. He was not using a spotter. A LendLease employee, Mr Rice, was crouched near the haul road spray-painting a "KEEP CLEAR" marking on the ground when the forklift load struck him.
Mr Rice sustained serious injuries including a bruised pelvis, crushing trauma, a torn knee ligament, and soft tissue damage. He was hospitalised for 12 days, required a leg brace and rehabilitation, and had not returned to pre-injury duties by the time of sentencing. LendLease pleaded guilty to failing to comply with its health and safety duty under the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Rice to a risk of death or serious injury.
Legal Issues
- Whether LendLease, as principal contractor, failed to discharge its duty under section 19(1) of the Work Health and Safety Act 2011 by not implementing adequate traffic management systems, including pedestrian exclusion zones, physical barriers, or the use of a spotter
- The objective seriousness of the offence and where it fell on the spectrum of culpability
- How the parity principle applied, given that ESS had been sentenced separately for the same incident
- What weight to give to mitigating factors, including the guilty plea, remorse, contrition, and LendLease's voluntary ongoing financial support for Mr Rice
- The appropriate quantum of fine, and whether it required reduction for limited capacity to pay
Decision
Russell SC DCJ found that LendLease's culpability was less than that of ESS. ESS had placed an unlicensed worker on the forklift without checking his credentials, failed to supervise him, and failed to require him to use a spotter when his view was obstructed. LendLease, by contrast, had induction requirements in place covering forklift safety and had contractually required all contractors to ensure their workers held appropriate certifications. However, LendLease remained the principal contractor responsible for site safety, and the injured worker was its own employee.
The court accepted that the offence was of some seriousness. The risks associated with forklifts operating near pedestrians on a busy construction site were well known, and the failure to implement basic controls such as a spotter when vision was obstructed was a significant omission. At the same time, the court acknowledged LendLease's otherwise sound systems, its genuine contrition, its early plea of guilty, and its voluntary ongoing financial support for Mr Rice.
Applying the parity principle, the court fixed the appropriate penalty at $80,000 before taking into account the guilty plea discount. A 25 per cent reduction was applied for the plea, producing a final fine of $60,000. No argument was advanced that LendLease had a limited capacity to pay.
Orders Made
- LendLease Building Pty Limited convicted of the offence under section 32 of the Work Health and Safety Act 2011
- Fine of $60,000 imposed (reduced from $80,000 by 25 per cent for the guilty plea)
- 50 per cent of the fine directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
- LendLease ordered to pay the prosecutor's costs, agreed in the amount of $34,483.79, payable within 28 days
Key Takeaways
- A principal contractor's culpability under the Work Health and Safety Act 2011 can be assessed as less than that of a subcontractor where the subcontractor was the more direct cause of the incident, but that does not extinguish the principal contractor's liability for failing to ensure adequate site safety controls were in place.
- Where multiple defendants have been sentenced for offences arising from the same incident, the parity principle requires the court to ensure that any disparity in penalties reflects genuine differences in culpability, not mere inconsistency.
- Voluntary and ongoing financial support provided to an injured worker following an incident is capable of operating as a mitigating factor at sentencing.
- Under section 6 of the Fines Act 1996, limited capacity to pay is relevant but not decisive; a substantial fine may still be warranted by the seriousness of the offence and general deterrence, and the evidentiary burden of demonstrating limited capacity rests on the offender.
- The failure to deploy a spotter when a forklift operator's view is obstructed by a load is a recognised, straightforward control measure whose absence will weigh against a defendant in assessing the reasonableness of its safety systems.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cl 81 and Sch 3
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
- Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
- Markarian v R (2005) 228 CLR 357
- Veen v R (No. 2) (1998) 164 CLR 465
- Jimmy v R (2010) 77 NSWLR 540
- Green v R [2011] HCA 49
- Jahandideh v R [2014] NSWCCA 178
- R v McNaughton (2006) 66 NSWLR 566