Citation: Safework NSW v Proflow Plumbing and Maintenance Pty Limited [2019] NSWDC 593
Court: District Court of New South Wales
Date: 24 October 2019
Judge: Russell SC DCJ
Background
A small plumbing company was engaged to repair a blocked sewage pipe at a residential property in Glenmore Park, western Sydney. The home was occupied by a 90-year-old man with limited mobility who lived alone, with daily visits from adult children. The company began excavating a trench in the rear yard in July 2017.
On 20 July 2017, the company's workers left the site in the early afternoon to collect additional materials, leaving a trench approximately 3.5 metres long, 1.5 metres deep and 450 millimetres wide completely uncovered and without any barricade. The workers returned about two hours later, found the gate closed and no car in the driveway, waited around 25 minutes, and then left without attempting to contact the resident's family or securing the trench. The resident had in fact returned home and was alone that night.
Sometime during that night or the early morning of 21 July 2017, the resident entered the backyard and fell into the trench. His son discovered him the following morning, wedged face-up in mud and dressed only in a singlet and underwear. He died during rescue efforts. The coroner determined the most likely cause of death was hypothermia. The company subsequently pleaded guilty to a work health and safety offence.
Legal Issues
- What was the appropriate sentence for a corporation that pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), arising from a failure to comply with its duty as a person conducting a business or undertaking (PCBU)?
- How should objective seriousness, mitigating factors (including the guilty plea), and the offender's financial position be weighed in determining the fine?
- What role did general and specific deterrence play in fixing the penalty?
- How should victim impact statements be considered, and to what extent could allegations within those statements be taken into account?
Decision
The District Court assessed the objective seriousness of the offence as falling in the mid-range. The risk of a person falling into an unguarded excavation was an obvious and foreseeable hazard, specifically contemplated by the Work Health and Safety Regulation 2011 and the Excavation Work Code of Practice 2015. Preventive measures were simple and inexpensive: the company's own vehicle contained star pickets and barrier mesh, and a sheet of plywood costing less than $80 could have covered the trench. The company had also failed to adequately instruct or supervise its employees about securing excavations when leaving a site.
The court noted several mitigating factors. The company entered an early guilty plea, which warranted a 25% discount. The sole director was 26 years old, had started the business with family assistance, and cooperated with investigators. Following the incident, the company purchased fencing equipment, developed new Safe Work Method Statements, implemented toolbox meetings and written risk assessments, and trained its workers in the revised procedures. These post-incident steps demonstrated genuine, if belated, remediation.
The company's financial position presented a complication. The profit and loss accounts recorded an operating loss, suggesting no current capacity to pay a fine. The court observed that the financial picture was incomplete and that the company continued to operate. The court determined that general deterrence was a significant sentencing consideration given the serious and preventable nature of the death, and that a substantial fine remained appropriate despite the company's apparent financial difficulties.
On victim impact statements, the court accepted the profound and lasting grief suffered by the deceased's family and took that harm into account as harm to the community under the Crimes (Sentencing Procedure) Act 1999. However, the court expressly disregarded allegations made within those statements about the company's business practices or the director's credibility, as those matters were not relevant to the impact of the death on family members.
Orders Made
- The offender was convicted on 17 October 2019.
- A fine of $300,000 was imposed (representing a base fine of $400,000 reduced by 25% for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The offender is to pay the prosecutor's agreed costs of $26,400.
Key Takeaways
- The District Court confirmed that leaving an unguarded, uncovered excavation at a residential property occupied by a vulnerable person constitutes a serious breach of a PCBU's duty under s 19(2) of the Work Health and Safety Act 2011, warranting a substantial penalty even where the offender is a small company with limited finances.
- Under s 32 of the Act, a Category 2 offence attracts a maximum fine of $1,500,000 for a corporation; the court calibrated the penalty by reference to the mid-range of objective seriousness, available and inexpensive control measures that were not used, and the foreseeable vulnerability of the occupant.
- A 25% discount applied for the guilty plea, consistent with the principles in Crimes (Sentencing Procedure) Act 1999 and applicable case law, reducing a $400,000 base fine to $300,000.
- Victim impact statements were admissible and relevant to the harm suffered by the community, but the sentencing court expressly excluded from consideration any allegations within those statements that went beyond the emotional and psychological impact of the death on family members.
- Post-incident remediation, including the introduction of new safe work procedures, training, and physical safety equipment, was treated as a mitigating factor going to specific deterrence, though it did not diminish the significance of general deterrence given the preventable and fatal nature of the breach.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32, 155, 274
- Work Health and Safety Regulation 2011 (NSW), cls 34, 35, 79, 305
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 28
- Fines Act 1996 (NSW), s 122(2)
- Crimes Legislation Amendment (Victims) Act 2018 (NSW)
- Excavation Work Code of Practice 2015
Cases
- 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
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Sandell v Porter [1966] HCA 28; (1966) 115 CLR 666
- Jonson v R [2016] NSWCCA 286
- Katsis v R [2018] NSWCCA 9
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432