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District Court 4 October 2019

Safework NSW v Emu Group Pty Limited

[2019] NSWDC 537

Public order & justice offences
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Safework NSW v Emu Group Pty Limited [2019] NSWDC 537
Court: District Court of New South Wales
Date: 4 October 2019
Judge(s): Russell SC DCJ

Background

A painter working at a seven-storey residential apartment construction site in Fairfield fell approximately 2.9 metres through an unprotected stair void onto a concrete floor on 16 September 2016. He suffered severe injuries including a broken arm, fractured skull, fractured eye socket, fractured jaw, and facial lacerations, and has not returned to work since.

The defendant, Emu Group Pty Limited, was the principal contractor and property developer at the site. It had engaged a chain of contractors and subcontractors for painting work, with the injured worker ultimately employed by a subcontractor. Emu Group's sole director served as principal supervisor, and the site was managed day-to-day by two foremen, neither of whom had authority to make substantial health and safety decisions.

SafeWork NSW prosecuted Emu Group as a person conducting a business or undertaking (PCBU) for failing to comply with its duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), where that failure exposed the worker to a risk of death or serious injury, contrary to section 32 of the Act. Emu Group pleaded guilty on 3 June 2019.

  • What was the objective seriousness of the offence, having regard to the nature of the risk and Emu Group's culpability as principal contractor?
  • What mitigating and aggravating factors applied to the sentencing exercise?
  • What discount was appropriate for the guilty plea?
  • What fine was proportionate, taking into account general and specific deterrence?
  • What costs order should be made?

Decision

The court found that Emu Group bore significant responsibility as principal contractor. It had authorised the removal of formwork around the stair voids before the incident, without conducting any risk assessment for working at heights or near open penetrations, without preparing a site-specific safe work method statement covering those hazards, and without conducting a site induction addressing those risks. The foreman present on the day had no supervisory experience and, at the toolbox meeting held that morning, raised only protruding nails as a safety concern, not the open voids. The level where the fall occurred was not blocked off to prevent access, and two of the six penetrations had not even been taped with danger tape by the time of the incident.

The court assessed the objective seriousness of the offence as warranting meaningful punishment. The risk of a fall through an open penetration of that size on an active multi-storey construction site was readily foreseeable, and the available control measures such as barriers, edge protection, temporary platforms, or securely fixed covers were straightforward. The consequences for the worker were severe and permanent.

Mitigating factors included Emu Group's plea of guilty, its cooperation with the prosecutor throughout the investigation, and the absence of any prior convictions. The court accepted that a 25% discount for the early plea was appropriate, as agreed by both parties. No submissions were made regarding Emu Group's capacity to pay, so that consideration did not reduce the fine.

The court arrived at a base fine of $240,000, which it reduced by 25 percent to $180,000 to reflect the guilty plea. Pursuant to section 122(2) of the Fines Act 1996, 50 percent of the fine was directed to be paid to SafeWork NSW as prosecutor. Agreed prosecution costs of $24,000 were also ordered.

Orders Made

  • Emu Group Pty Limited convicted on 2 October 2019.
  • Fine of $180,000 imposed (reduced from a base of $240,000 by 25% for the guilty plea).
  • 50% of the fine ordered to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996.
  • Emu Group ordered to pay agreed prosecution costs of $24,000.

Key Takeaways

  • A principal contractor's failure to conduct any risk assessment, prepare site-specific safe work method statements, or implement basic fall-prevention controls before authorising work near open penetrations was treated as a significant factor in assessing objective seriousness under the WHS Act.
  • Under section 32 of the Work Health and Safety Act 2011, a PCBU's breach of its primary duty is established where that failure exposed a worker to a risk of death or serious injury, even where the worker was employed through a chain of contractors and subcontractors.
  • Cooperation with investigators and a timely guilty plea attracted a 25% sentencing discount, consistent with section 22(1) of the Crimes (Sentencing Procedure) Act 1999.
  • The District Court confirmed, applying the Court of Criminal Appeal's reasoning in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, that questions of specific deterrence must account for the size and scope of a defendant's operations, and that a substantial fine may still be warranted for general deterrence even where capacity to pay is limited.
  • Applying danger tape across only four of six open penetrations and failing to restrict worker access to the relevant level were treated as meaningful indicators of the inadequacy of Emu Group's safety management on the day of the incident.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 79(3), 299, 300
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22(1)
- Fines Act 1996 (NSW), ss 6, 122(2)

Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Safework NSW v Ru Dong Li [2018] NSWDC 189
- Smith v Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465