Citation: SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 472
Court: District Court of New South Wales
Date: 19 August 2019
Judge(s): Scotting DCJ
Background
The defendant, a property asset management company, managed a commercial building at 20 Bridge Street, Sydney on behalf of its owners. As part of that role, it was responsible for the maintenance of a building maintenance unit (BMU), a suspended working platform used to access the building's exterior for tasks such as window cleaning.
On 20 October 2015, two workers were operating the BMU to clean windows when it fell approximately 12 storeys, landing on the building's awning. Both workers were seriously injured. One remained trapped inside the fallen cradle; the other went over the awning's edge, suspended by his safety harness. The fall was caused by fatigue cracking in the load-bearing studs connecting the cradle to the winches. The cracking had developed silently over years of normal operation and left no visible warning signs.
The defendant had been advised in April 2015 by its BMU service provider that the unit was overdue for a mandatory 10-year major inspection under the relevant Australian Standards. That inspection was never arranged. SafeWork NSW prosecuted the defendant for failing to comply with its duty under the Work Health and Safety Act 2011, and the matter proceeded to trial before the same judge who then imposed sentence.
Legal Issues
- Whether the defendant had breached its duty under section 32 of the Work Health and Safety Act 2011 by failing to arrange the required 10-year major inspection of the BMU
- The appropriate penalty, having regard to the objective seriousness of the offence, aggravating factors (including substantial harm caused), and mitigating factors (including no prior convictions and cooperation with authorities)
- The weight to be given to general and specific deterrence in sentencing
Decision
The District Court had already found the defendant guilty at trial (see [2019] NSWDC 76). The sentencing judgment proceeded on the basis of those findings. The breach was established by the defendant's failure to arrange a strip-down major inspection, including non-destructive testing of critical components, as required by Australian Standards AS 2550.13-1997 and AS 2550.1-2011. That inspection would have identified, or prompted replacement of, the fatigued studs at a cost of approximately $1,000 for the pair.
The Court found the defendant had been expressly notified of the overdue inspection requirement in April 2015, yet failed to ensure that information reached its facilities manager or senior facilities manager responsible for the building. The risk of catastrophic failure increased the longer the inspection was delayed, and the defendant bore no financial cost for the inspection, as the expense would have been met by the building's owners.
On penalty, the Court weighed the objective seriousness of the offence, the serious injuries to both workers, and the fact that the defendant had been specifically warned of the risk. Against those factors, the Court took into account the defendant's clean record, its prospects of rehabilitation, and its cooperation with law enforcement. The maximum available penalty was $1.5 million. The Court imposed a fine of $400,000.
Orders Made
- Conviction recorded against Investa Asset Management Pty Ltd for an offence under section 32 of the Work Health and Safety Act 2011
- Monetary penalty of $400,000 imposed
- Order that the defendant pay the costs of the proceedings
- Order requiring the defendant to publish the details of the court's orders (the published notice reproduced in the decision text satisfies this requirement)
Key Takeaways
- The District Court confirmed that a person conducting a business who manages plant on behalf of an owner can be convicted under the Work Health and Safety Act 2011 for failing to arrange mandatory periodic inspections, even where the financial cost of that inspection would have been borne by others.
- Notification of an overdue safety inspection by a service provider does not discharge a duty holder's obligations. The defendant's failure to pass that information to its own responsible staff was treated as a significant aggravating feature.
- Where fatigue cracking in critical components is not visible to the naked eye and cannot be detected by routine servicing, the mandated major inspection process (including non-destructive testing) serves as the primary safeguard, and omitting it exposes duty holders to serious criminal liability.
- A fine of $400,000, out of a maximum of $1.5 million, reflected the Court's assessment of the offence as serious in objective terms, with the reduction acknowledging the defendant's lack of prior convictions, rehabilitation prospects, and cooperation with authorities.
- General deterrence carried significant weight in the sentencing analysis, consistent with the approach taken in cases such as Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37, given the importance of workplace safety obligations in preventing catastrophic and irreversible harm.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Australian Standard AS 2550.13-1997
- Australian Standard AS 2550.1-2011
Cases
- SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 76 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Green v The Queen (2011) 244 CLR 462
- R v Thangavelautham [2016] NSWCCA 141
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412