AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 October 2019

Safework NSW v Kukas Brothers Pty Limited

[2019] NSWDC 592

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Safework NSW v Kukas Brothers Pty Limited [2019] NSWDC 592
Court: District Court of New South Wales
Date: 24 October 2019
Judge: Russell SC DCJ

Background

Kukas Brothers Pty Ltd was a small construction company engaged as principal contractor on a $30 million aged care residential village project in Forster, NSW. On 31 January 2017, a labourer was directed by the site supervisor to level gravel at the bottom of an excavation pit approximately 3.5 metres deep. The only means of access, a free-standing aluminium ladder, was subsequently removed from the pit by other workers to assist with a separate task elsewhere on site.

Left without any way to exit the pit, the labourer asked the supervisor how he would get out. The supervisor directed the operator of a utility excavator to lift the labourer out of the pit using the excavator bucket. As the bucket was raised over the steel sheet piling surrounding the pit, it clipped the piling and jolted, throwing the labourer out. He fell back into the pit and struck the sheet piling with his left knee.

The labourer suffered serious injuries, including laceration of 80% of his left patella tendon. He required surgery and ongoing physiotherapy, and did not return to work until approximately two years after the incident. Kukas Brothers pleaded guilty to failing to comply with its work health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing a worker to a risk of death or serious injury contrary to section 32 of that Act.

  • What was the appropriate penalty for a category 2 WHS offence under section 32 of the Work Health and Safety Act 2011 (NSW), where the maximum fine is $1,500,000?
  • How should objective seriousness be assessed, including the foreseeability of the risk, the gravity of potential harm, and the adequacy of control measures in place?
  • What mitigating factors applied, including a guilty plea, cooperation with investigators, prior good record, and remorse?
  • What weight should be given to general and specific deterrence in sentencing a small construction company?
  • What costs order was appropriate?

Decision

Russell SC DCJ assessed the objective seriousness of the offence as falling in the lower to middle range. The risk of serious injury was clearly foreseeable: excavation work poses obvious hazards, and the relevant legislation and the company's own WHS documentation specifically addressed safe means of entry and exit from excavations. Using an excavator bucket to lift a person was expressly prohibited by the excavator operator's own Safe Work Method Statement, which the operator had signed. Despite these clear warnings, the site supervisor directed this very course of action.

The court found that the principal cause of the incident was the removal of the ladder from the pit without any alternative egress being provided, combined with the supervisor's decision to use the excavator bucket as a solution. The company's documented WHS systems were not inherently deficient, but they were not followed in practice on the day. The court took into account that the risk materialised directly from a decision made by the supervisor in the moment, rather than from a systemic and prolonged failure.

Several mitigating factors reduced the appropriate penalty. The company had no prior WHS convictions, cooperated fully with the investigation, expressed genuine remorse, and made early admissions. The court accepted that the offender bore genuine moral responsibility but noted the offence fell short of the most serious examples in its category. A 25% discount applied to reflect the early guilty plea, consistent with the Crimes (Sentencing Procedure) Act 1999 (NSW).

General deterrence was an important consideration. The court noted that WHS obligations on construction principals are well established, and the need to signal to the industry that inadequate egress arrangements and improvised solutions carry serious consequences was reflected in the penalty. No submission was made regarding the company's capacity to pay, so that factor did not reduce the fine further.

Orders Made

  • Kukas Brothers Pty Ltd convicted of the offence.
  • Fine of $160,000 reduced by 25% for the early guilty plea, resulting in a fine of $120,000.
  • 50% of the fine ($60,000) ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW).
  • Kukas Brothers ordered to pay the prosecutor's agreed costs of $25,000.

Key Takeaways

  • The District Court confirmed that using an excavator bucket to lift a person from an excavation constitutes a serious and foreseeable risk of death or serious injury, particularly where the operator's own Safe Work Method Statement explicitly prohibited that practice.
  • A documented WHS management system did not insulate the offender from liability where the system was not followed on the day of the incident; the gap between documented policy and on-site practice was central to the finding of guilt.
  • Under section 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount for an early guilty plea applied, reducing the fine from $160,000 to $120,000, well below the $1,500,000 statutory maximum for a category 2 offence.
  • General deterrence carried significant weight in sentencing, even for a small company with no prior record, because the risk presented by inadequate excavation egress is well known and the relevant legal obligations are clearly established.
  • Objective seriousness was placed in the lower to middle range because the failure arose primarily from a poor supervisory decision in the moment rather than a deep-seated or prolonged systemic failure, though the foreseeability of serious harm remained a significant aggravating consideration.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cls 36, 78, 305
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- Occupational Health and Safety Act 2004 (Vic) (referenced comparatively)

Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- 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
- 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
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432