Citation: SafeWork NSW v PNA Property Developments Pty Ltd [2019] NSWDC 435
Court: District Court of New South Wales
Date: 26 August 2019
Judge: Scotting DCJ
Background
The defendant, a residential and commercial property developer, was engaged as principal contractor on a mixed-use development at Belmore, NSW. It subcontracted bricklaying work to a labour supplier whose workers, including the injured man, had limited English proficiency and whose native languages were Farsi and Hazaragi respectively. The site foreman was in his first role as foreman and had received no training in workplace health and safety management.
A ventilation shaft approximately five metres deep ran through three basement levels. A subcontractor had removed plywood covering the shaft opening and temporarily installed riveted metal sheeting, warning the site foreman that the covering was unsafe and presented a fall risk. Temporary bollards and tape were placed nearby, but these were subsequently absent when the injured worker began his task.
On 6 July 2016, the injured bricklayer was directed to install a door frame and brickwork around the shaft opening. No one informed him of the hazard below. While attempting to install a timber piece above the door frame, he stepped onto the metal sheeting, which gave way, and he fell approximately five metres. He was trapped in the narrow shaft for around two hours before emergency crews could reach him.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, failed to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011, thereby exposing workers to a risk of death or serious injury contrary to section 32 of that Act
- How the offence should be assessed for objective seriousness in the sentencing exercise
- What weight to give to aggravating and mitigating factors, including prior regulatory notices, the severity of the worker's injuries, the defendant's plea of guilty, cooperation with investigators, and its character as a corporate citizen
- Whether the parity principle required the defendant's fine to align closely with the fine imposed on the subcontracting employer
Decision
Scotting DCJ found the offence was of moderate objective seriousness. The risk was obvious and well known to the defendant: it had been directly warned by the ventilation subcontractor that the shaft cover was unsafe. The hazard could have been eliminated or controlled at low cost, for example by installing adequate barricading or ensuring Airspec completed its work before bricklayers were directed into the area.
The court identified several aggravating features. The defendant had previously received Improvement Notices concerning fall-from-height risks at the same site, yet the systemic failures persisted. No Safe Work Method Statement or risk assessment was obtained from the bricklaying subcontractor. The site foreman had no health and safety training. Workers with limited English received induction documents only in English, and records indicated their inductions were not genuinely completed.
The consequences for the injured worker were severe and ongoing. His injuries included a spinal cord injury requiring vertebral fusion, a further spinal fracture, and a fractured foot. He was hospitalised for approximately four months and continues to suffer chronic pain, disability, and depression. His capacity to work has been destroyed and his ability to reunite with his family in Australia has been placed in doubt.
On mitigation, the court accepted the defendant's early guilty plea (attracting a 25% discount), its cooperation with SafeWork investigators, its absence of prior convictions, and its record of charitable giving as a good corporate citizen. The court departed from strict parity with the fine imposed on the bricklaying subcontractor's director ($22,500 against a $300,000 maximum) because, as principal contractor, the defendant held broader site control, greater capacity to address the hazard, and had received prior regulatory warnings that its fall-prevention systems were deficient.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $180,000 was imposed (being $240,000 reduced by 25% for the guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ($90,000) is to be paid to the prosecutor
- The defendant is to pay the prosecutor's agreed costs of $18,000
Key Takeaways
- A principal contractor's greater control over a worksite, and its capacity to direct subcontractors or remove hazards, can justify a materially higher penalty than that imposed on a subcontracting employer involved in the same incident.
- Prior Improvement Notices issued to the same offender regarding the same category of risk (falls from height) constituted a significant aggravating factor, as they demonstrated that the defendant had notice of systemic deficiencies before the incident occurred.
- Where workers lack English proficiency, induction documents provided only in English and unsigned induction records do not discharge a principal contractor's duty to ensure workers understand site hazards.
- Under section 32 of the Work Health and Safety Act 2011, the maximum penalty for a corporation is $1.5 million; the fine imposed here ($180,000 after discount) reflected moderate objective seriousness when weighed against the mitigating factors established by the plea and the defendant's background.
- Victim impact material concerning long-term physical disability, psychological harm, and consequential family separation formed part of the sentencing exercise, even though such material does not alter the legal categorisation of the offence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(m)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Green v The Queen (2011) 244 CLR 462
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412