Citation: SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442
Court: District Court of New South Wales
Date: 29 August 2019
Judge: Russell SC DCJ
Background
Sydney Hoist and Scaffolding Pty Ltd (the offender) was a scaffolding contractor engaged to erect, maintain, alter and dismantle a scaffold at a 14-storey construction site at Mascot, New South Wales. The arrangement, valued at over $400,000, was with Toplace Pty Ltd, the principal contractor for the project. The scaffold reached approximately 44 metres in height on its western face, adjoining a busy public street.
On 25 February 2014, the scaffold structure was found to have serious deficiencies: insufficient ties and bracing, missing handrails, no documented plan detailing bracing or dismantling procedures, and no review by a competent engineer. These deficiencies created a risk of collapse.
Five workers engaged at the site, including scaffolders and a leading hand rigger, were exposed to a risk of death or serious injury. A sixth person, a passing motorist, was also exposed to the same risk. SafeWork NSW prosecuted the offender under the Work Health and Safety Act 2011 (NSW).
Legal Issues
- Whether the offender, as a person conducting a business or undertaking, failed to comply with its primary duty of care under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers and a member of the public to a risk of death or serious injury contrary to s 32 of that Act
- The objective seriousness of the offence and its appropriate placement within the sentencing range
- The relevance of mitigating factors, including the early guilty plea, co-operation with the prosecutor, and remediation steps
- The offender's capacity to pay a fine under s 6 of the Fines Act 1996 (NSW)
- The appropriate quantum of penalty, including the application of a discount for the guilty plea
Decision
The offender pleaded guilty to the principal charge under s 32 of the Work Health and Safety Act 2011 (NSW), which carries a maximum fine of $1,500,000 for a corporation. A related charge concerning the risk to the passing motorist was not prosecuted separately; instead, it was taken into account on a Form 1 alongside the principal charge, and those separate proceedings were dismissed.
The court assessed the objective seriousness of the offending, having regard to the height and scale of the scaffold, the number of persons put at risk, the identifiable deficiencies in the structure, and the absence of any documented safety plan or engineer review. These factors pointed to significant culpability for a business operating in a specialised and inherently dangerous field.
In mitigation, the court accepted that the offender had pleaded guilty at an early stage, warranting a 25% discount on the fine. The offender also co-operated fully with SafeWork NSW and provided requested documents promptly. No issue of incapacity to pay was raised by the offender.
Applying the relevant sentencing principles, including those from the Court of Criminal Appeal's decisions in Unity Pty Limited v SafeWork NSW and Nash v Silver City Drilling, the court arrived at a base fine of $300,000, reduced to $225,000 after the guilty plea discount.
Orders Made
- The offender was convicted in proceedings 2016/57563.
- A fine of $225,000 was imposed (reduced from a base of $300,000 by a 25% early guilty plea discount).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to SafeWork NSW as prosecutor.
- The offender was ordered to pay the prosecutor's costs.
- Proceedings 2016/57600 (the separate charge relating to the motorist) were dismissed with no order as to costs.
Key Takeaways
- A corporation conducting a scaffolding business owed a primary duty under s 19 of the Work Health and Safety Act 2011 (NSW) to all workers and persons in the vicinity of the worksite, and a failure to maintain a structurally sound scaffold with adequate ties, bracing, and documented safety plans constituted a breach of that duty.
- Under s 32 of the Work Health and Safety Act 2011 (NSW), exposing persons to a risk of death or serious injury through a breach of a health and safety duty attracts a maximum corporate fine of $1,500,000; the sentencing court calibrates the actual penalty against objective seriousness and any applicable mitigating factors.
- An early guilty plea attracted a 25% discount on the base fine, consistent with the approach confirmed in prior Court of Criminal Appeal decisions on WHS sentencing.
- Where a defendant does not raise capacity to pay, the court proceeds without reducing the fine on that basis, though the obligation under s 6 of the Fines Act 1996 to consider the offender's means remains a standing sentencing requirement.
- The consolidation of a related charge onto a Form 1, rather than proceeding with separate proceedings, is a recognised mechanism in WHS prosecutions that allows the court to take the additional offending into account in sentencing without a separate conviction.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146