Citation: Safework NSW v HCM Building Pty Limited [2019] NSWDC 632
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Russell SC DCJ
Background
HCM Building Pty Limited was the principal contractor for a three-storey residential development in Croydon, NSW. As principal contractor, HCM Building held ultimate responsibility for site safety, including the control and organisation of workers. It engaged a subcontractor, NSW Formwork Pty Ltd, to carry out formwork, steelfixing, and concrete works, with the subcontract expressly requiring NSW Formwork to install and maintain starter bar caps on all reo bars.
On 6 April 2016, a NSW Formwork employee, Mr Entanious Mansour, was directed by his supervisor to use an eye laser to mark the underside of a formwork deck on the basement level. No equipment was provided for the task. Mr Mansour found an aluminium stepladder and used it to perform the work. The ladder wobbled while he was nailing into the deck, and he fell onto an exposed, uncapped vertical steel reo bar, which impaled him. Emergency services attended, cut the reo bar with a grinder, and Mr Mansour was transported to hospital where the embedded section was surgically removed.
HCM Building pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW), namely that as a person with a work health and safety duty it failed to comply with that duty and thereby exposed workers to a risk of death or serious injury. The proceeding before the District Court concerned the appropriate sentence.
Legal Issues
- The objective seriousness of the offence, including the foreseeability of the risk and the measures available to eliminate or minimise it
- The weight to be given to mitigating factors, including the plea of guilty, the offender's prior compliance history, and the role of the subcontractor
- The relevance of a co-offender's (NSW Formwork's) culpability to HCM Building's sentence
- The appropriate fine, including any reduction for the guilty plea and the offender's capacity to pay
Decision
The court assessed the objective seriousness of the offence. The risk of a worker falling from a ladder, and the additional risk posed by uncapped reo bars, were both readily foreseeable on a construction site. Measures to address each risk, including edge protection and bar caps, were well known and available at minimal cost. The court noted the serious injuries suffered by Mr Mansour and the fact that two workers, Mr Mansour and Mr Boumoussa, were exposed to risk, treating the offence as falling in the mid-range of objective seriousness.
In assessing mitigating factors, the court credited HCM Building's early guilty plea and its cooperation with investigators. The offender had no prior convictions and had taken steps to improve safety practices after the incident. These matters reduced the sentence from what would otherwise have been warranted.
The court considered the relative culpability of HCM Building and NSW Formwork. It found HCM Building was less culpable than NSW Formwork, because it was NSW Formwork that employed Mr Mansour, directed him to perform the task without equipment, was the specialist formwork contractor, and had a specific contractual obligation to install bar caps. Nonetheless, HCM Building, as principal contractor with overarching site responsibility, remained culpable for the failures that contributed to the incident.
On penalty, the court determined a base fine of $180,000 was appropriate, having regard to objective seriousness, general and specific deterrence, and the mitigating factors established. That figure was reduced by 25 per cent to reflect the guilty plea, resulting in a fine of $135,000.
Orders Made
- HCM Building Pty Limited convicted of the charge under section 32 of the Work Health and Safety Act 2011 (NSW)
- Fined $135,000 (base fine of $180,000 reduced by 25 per cent for the guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996, 50 per cent of the fine directed to be paid to the prosecutor
- Ordered to pay the prosecutor's agreed costs of $35,000
Key Takeaways
- The District Court confirmed that a principal contractor's overarching responsibility for site safety is not discharged by delegating specific safety obligations to a subcontractor through contract terms.
- Where multiple duty-holders contribute to a risk, the relative culpability of each is a relevant consideration in sentencing, though it does not absolve any individual duty-holder of responsibility for its own failures.
- Under the Work Health and Safety Act 2011 (NSW), a risk of death or serious injury arising from well-known, readily foreseeable construction hazards (such as falls from ladders and uncapped reo bars) will generally attract findings of significant objective seriousness.
- A 25 per cent discount on the base fine was applied to reflect an early guilty plea, consistent with the approach taken under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles in Green v The Queen.
- Where no submission on capacity to pay is advanced, the court proceeds on the basis that capacity is not in issue, and the fine is assessed by reference to the seriousness of the offence and deterrence considerations alone.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
- Occupational Health and Safety Act 1983 (NSW)
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
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263; (2001) 109 IR 316
- Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540