Citation: R v Truslan Constructions Pty Ltd [2019] NSWDC 321
Court: District Court of New South Wales
Date: 12 July 2019
Judge: Strathdee DCJ
Background
The defendant, a residential construction company acting as principal contractor, was engaged to build a six-storey mixed-use development in Ryde, NSW. It subcontracted formwork services to a specialist firm, which in turn engaged a further subcontractor whose worker, an experienced carpenter with 25 years in the trade, was working on the Level 2 deck on 25 October 2016.
That worker fell more than three metres through a gap between unfinished plywood decking and the perimeter scaffold, landing on a protruding metal starter bar. He died as a result of his injuries.
The prosecution arose under the Work Health and Safety Act 2011 (the Act). The defendant pleaded guilty to failing, as a person conducting a business or undertaking, to ensure so far as reasonably practicable the health and safety of workers at its site, thereby exposing workers to a risk of death or serious injury, contrary to section 32 of the Act.
Legal Issues
- What was the appropriate sentence for the offence, having regard to the maximum penalty of $1,500,000?
- What weight should be given to aggravating factors, including a prior safety notice, the director's attitude to safety obligations, and the fatal consequences?
- What discount should apply for the early guilty plea and other mitigating factors?
- What role should specific deterrence play in sentencing, given the court's assessment of the offender's ongoing compliance culture?
Decision
The court found that the formwork on Level 2 had not been carried out in accordance with the accepted industry standard work sequence, and that this deviation had persisted for some time before the incident. Significant gaps existed between the deck edge and the perimeter scaffold, there were no handrails or catch decks, and the Safe Work Method Statement in place did not address the specific task the deceased worker was performing. Ample guidance material was available but had not been used.
A particularly significant aggravating feature was that a union safety representative had visited the site 11 days before the incident, identified fall-from-height risks, and issued a formal notice. The court found this should have prompted urgent inspection and remediation, but the offender took no adequate steps. The attitude of the company's director to the pre-incident notices, and to his WHS obligations following the death, were treated as further aggravating factors. The victim impact statement from the deceased's widow was also noted as an aggravating matter, reflecting the profound personal loss suffered.
On specific deterrence, the court expressed concern about the adequacy of the offender's answers during the sentence hearing regarding what systems were now in place. The court was not satisfied those answers were sufficient to conclude there would be no further breaches, and gave specific deterrence significant weight as a result.
The court accepted four mitigating factors: an early guilty plea (attracting a 25% discount), no prior convictions, cooperation with the SafeWork investigation, and genuine remorse from the director. The base fine of $600,000 was reduced by 25% to $450,000.
Orders Made
- The offender is convicted of the offence contrary to section 32 of the Work Health and Safety Act 2011.
- A fine of $450,000 is imposed (reduced from a base fine of $600,000 by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- The offender is to pay the prosecutor's costs in the sum of $32,500 (inclusive of GST), by agreement.
Key Takeaways
- The District Court treated a prior on-site safety notice, issued just 11 days before the fatal incident, as a material aggravating factor where the principal contractor failed to respond with adequate inspection or remediation.
- A director's attitude toward WHS obligations, both before and after the incident, is a relevant consideration at sentencing and can independently operate as an aggravating factor.
- Specific deterrence carries significant weight where a court is not satisfied, on the evidence, that the offender has implemented systems sufficient to prevent future contraventions.
- An early guilty plea, cooperation with the regulator, absence of prior convictions, and genuine remorse are recognised mitigating factors under the Crimes (Sentencing Procedure) Act 1999 and collectively justified a 25% reduction from the base fine.
- At $450,000 against a maximum of $1,500,000, the penalty reflects a mid-range outcome shaped by serious aggravating features, partially offset by the offender's early plea and co-operative conduct.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 5, 7, 8, 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e), (h), (m)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108