Citation: SafeWork NSW v Building Maintenance Unit Service Pty Ltd [2019] NSWDC 16
Court: District Court of New South Wales
Date: 18 February 2019
Judge: Scotting DCJ
Background
The defendant company provided electrical and mechanical maintenance and servicing of building maintenance units (BMUs), which are suspended platforms used to clean and maintain the external facades of buildings. The company had maintained the BMU at a 13-level office building in Sydney's CBD for approximately a decade, conducting quarterly inspections under contract.
Under Australian Standard AS 2550.13-1997, a BMU must undergo a major inspection ten years after commissioning. The BMU in question was commissioned in 1999 or 2000, making a major inspection due by 2009 or 2010 at the latest. Despite knowing of this requirement, the company never arranged or carried out that inspection. Critically, the load-bearing bolts inside the connection box could not be inspected without disassembling the box, and this was never done during any of the company's routine inspections.
On 20 October 2015, two window cleaners were using the BMU at the twelfth storey of the building when it suddenly fell 25 to 30 metres onto an awning below. One worker landed inside the BMU on the awning; the other went over the awning's edge, suspended only by his safety harness. Both men suffered severe injuries including spinal fractures, broken bones, and head trauma. Investigation revealed that load-bearing bolts had fractured due to extensive cracking from years of cyclical loading, a defect that a major inspection with non-destructive testing would have been designed to detect.
Legal Issues
- Whether the company, as a person conducting a business with a health and safety duty under section 19(2) of the Work Health and Safety Act 2011, failed to comply with that duty and thereby exposed workers to a risk of death or serious injury contrary to section 32 of the Act
- What constitutes the appropriate penalty, having regard to the objective seriousness of the offence, aggravating and mitigating factors, and the offender's capacity to pay a fine
- Whether the company's limited financial capacity should reduce the fine imposed, given the seriousness of the offence and the need for general deterrence
Decision
The company pleaded guilty to the charge. Scotting DCJ assessed the offence as being in the mid-range of objective seriousness. The risk of serious injury or death from a BMU failure at height was obvious and foreseeable. The company knew a major inspection was overdue, was specifically asked about it in March 2015, confirmed it was due "now" in April 2015, and yet took no further steps to prompt or arrange one. The estimated cost of the inspection was only $2,000, making the failure to act particularly difficult to justify.
The court identified several aggravating factors: two workers were exposed to the risk, both suffered substantial and serious injuries, and the offender's omission was the result of knowingly ignoring a well-established industry standard. There was no prior criminal record, however, which was a neutral rather than aggravating consideration.
Mitigating factors included the company's genuine cooperation with SafeWork NSW's investigation, the absence of prior convictions, its comprehensive post-incident system reforms (including updated checklists, a new inspection app, and a mandatory bolt-replacement policy), demonstrated remorse through its directors, and a guilty plea entered in a timely manner. These factors, together with good prospects of rehabilitation, reduced the penalty. A 25% discount was applied to reflect the utilitarian value of the guilty plea.
On capacity to pay, the court accepted that the company had limited means, having sold its business for $350,000 with proceeds applied to repay creditors and retaining no significant assets. However, Scotting DCJ declined to exercise his discretion to reduce the fine further on that basis, citing the seriousness of the offence and the imperative of general deterrence in the work health and safety context.
Orders Made
- The company was convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $300,000 was imposed (reflecting a pre-discount figure of $400,000, reduced by 25% for the guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ($150,000) was ordered to be paid to the prosecutor (SafeWork NSW)
- The company was ordered to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- A company responsible for maintaining safety-critical plant can be convicted under section 32 of the Work Health and Safety Act 2011 where it knowingly failed to carry out a mandatory periodic inspection, even without any direct act of negligence, where that omission exposed workers to a risk of death or serious injury.
- Under the Work Health and Safety Act 2011, the maximum penalty for a body corporate failing to comply with a health and safety duty is $1.5 million; the District Court imposed a fine of $300,000 after discounts, placing the offence in the mid-range of objective seriousness.
- Where a defendant company has confirmed an overdue safety inspection obligation in writing and taken no further action, that inaction weighs significantly toward objective seriousness regardless of the low cost of compliance.
- A limited capacity to pay is a relevant but not decisive consideration in WHS sentencing: the court held that the gravity of the offence and the need for general deterrence can override a financial hardship argument.
- Comprehensive post-incident remediation, genuine cooperation with regulators, demonstrated remorse, and a timely guilty plea collectively operated to reduce the penalty, reflecting the mitigating factors prescribed under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- Australian Standard AS 2550.13-1997: Cranes – Safe Use Part 13: Building Maintenance Units, cl 7.3.5
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- 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