Citation: SafeWork NSW v Aptec Constructions Pty Limited [2019] NSWDC 229
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Russell SC DCJ
Background
Aptec Constructions Pty Limited was the principal contractor for the construction of an apartment complex at Gosford, NSW. The sole director, who was also the site supervisor, engaged a subcontractor to perform concrete pumping services on the fourth-floor slab. On 30 November 2015, one of the subcontractor's workers fell approximately 3.6 metres from the edge of the fourth-floor platform.
The director had known since the day before the pour that edge protection would not be available for part of the fourth floor. Despite ordering additional scaffolding, he was told it could not arrive until several days later. He nonetheless directed the workers to proceed with the concrete pour, instructing them only to keep away from the edges.
During the pour, increased pump speed caused the delivery hose to jerk forcefully. The worker lost his footing on the steel mesh and fell over a starter bar at the platform edge. He sustained a broken femur, a skull fracture, and a traumatic brain injury. Aptec pleaded guilty to failing to comply with its duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to section 32 of that Act.
Legal Issues
- What was the appropriate fine for Aptec, having regard to the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the guilty plea, cooperation, and absence of prior convictions?
- What discount, if any, should apply because of Aptec's limited financial capacity to pay?
- What costs order was appropriate?
Decision
The court assessed the objective seriousness of the offence as significant. The risk of a fall from the unprotected fourth-floor edge was obvious and foreseeable. Adequate guidance materials existed, including the National Code of Practice for Prevention of Falls in General Construction and the relevant Australian Standard on temporary edge protection. The director had actual knowledge the day before the pour that no edge protection would be in place, yet directed the work to proceed. The court found that the failure to provide any fall prevention device or equivalent safe system of work was a serious departure from the standard required.
In considering mitigating factors, the court took into account the guilty plea, the offender's prior good record, cooperation with investigators, and expressions of contrition. No evidence of deliberate concealment or deliberate disregard for worker safety was identified beyond the failure itself, though the director's knowledge of the hazard beforehand was an aggravating circumstance. The court identified that general deterrence carried particular weight in work health and safety prosecutions of this kind.
On financial capacity, the court acknowledged Aptec's evidence of limited cash flow and a negative balance sheet. However, the court noted that Mr Aoun was the sole director of eight companies, and the evidence presented gave an incomplete picture of the group's overall financial position. The court mitigated the fine for capacity to pay, though it did so reluctantly given the limited financial disclosure, and found that a substantial penalty remained warranted.
The court arrived at a base fine of $240,000, reduced to $160,000 for capacity to pay, and then reduced by a further 25 percent to reflect the guilty plea, yielding a final fine of $120,000.
Orders Made
- Aptec Constructions Pty Limited convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $120,000 imposed (reduced from a base of $240,000 for capacity to pay, then by 25% for the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Aptec ordered to pay the prosecutor's agreed costs of $21,500.
Key Takeaways
- A principal contractor's actual foreknowledge of the absence of edge protection, combined with a decision to proceed regardless, constitutes a serious aggravating feature in sentencing under section 32 of the Work Health and Safety Act 2011 (NSW).
- Under the Act, the maximum penalty for a body corporate failing to comply with a health and safety duty that exposes a person to risk of death or serious injury is $1,500,000; the fine imposed here represented 8% of that maximum, reflecting mitigating factors including the guilty plea and limited financial capacity.
- Where a defendant company seeks a reduction for financial incapacity, incomplete disclosure of a broader corporate group's financial position will limit, but not eliminate, a court's willingness to mitigate a fine on that basis.
- The District Court reaffirmed that general deterrence carries significant weight in work health and safety sentencing, particularly where established industry codes and standards provided clear guidance on fall prevention that the offender failed to follow.
- A guilty plea attracted a 25% discount in circumstances where it was not entered at the earliest opportunity but nonetheless reflected a utilitarian benefit and an acceptance of responsibility.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19 and 32
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, and 79(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- Corporations Act 2001 (Cth), s 95A
Cases
- Attorney General for NSW 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
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Ru Dong Li [2018] NSWDC 189
- Sandell v Porter [1966] HCA 28; (1966) 115 CLR 666
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- Green v R [2011] HCA 49
- Veen v R (No. 2) (1988) 164 CLR 465
- Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316