Citation: SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Grasso (No 2) [2020] NSWDC 188
Court: District Court of New South Wales
Date: 11 May 2020
Judge(s): Scotting DCJ
Background
A civil and structural engineering company, Grasso Consulting Engineers Pty Ltd (GCE), and its sole director and structural engineer were convicted after trial of offences under s 32 of the Work Health and Safety Act 2011 (WHS Act). The convictions arose from advice GCE provided in connection with the staged demolition of the roof structure of the former Sydney Entertainment Centre (also known as the Qantas Credit Union Arena) at Haymarket, a large and complex steel roof spanning approximately 8,858 square metres.
GCE had been engaged on an ad hoc basis by Hassarati, a licensed demolition contractor, to advise on whether the roof could be demolished bay by bay while maintaining structural integrity. GCE provided written advice on three occasions between December 2015 and March 2016, without first preparing a computer model to test the loads on the remaining structure during the proposed demolition sequence.
On 19 March 2016, the remaining roof structure unexpectedly collapsed while demolition workers from subcontractor Rosenlund were operating an excavator on the arena floor. One worker was trapped inside the excavator and escaped by kicking out the window; he was physically unharmed. The collapse was caused by lateral torsional buckling in two primary trusses, triggered by the weight of remaining ancillary fixtures and the absence of lateral restraint over a significant span.
Legal Issues
- What penalty was appropriate for GCE under s 32 of the WHS Act, given a maximum fine of $1.5 million?
- What penalty was appropriate for the director, Mr Grasso, under s 32 of the WHS Act, given a maximum fine of $300,000?
- How should the court assess the objective seriousness of the offences and the mitigating factors, including the defendants' financial capacity to pay?
- What proportion of the prosecutor's costs should be awarded, given that a number of the prosecution's arguments failed at trial?
Decision
Scotting DCJ assessed the objective seriousness of both offences as relevant to the starting point for sentence. The core failure was that GCE gave structural advice, which was known to be sought for the purpose of eliminating or minimising the risk of unplanned structural collapse, without taking the reasonably practicable step of preparing a computer model. Without such a model, GCE's advice could not be tested and was based solely on Mr Grasso's engineering judgment, which was fallible. The advice turned out to be wrong in material respects, including the assertion that any bay could be demolished in any order without adversely affecting structural integrity.
On mitigating factors, His Honour took into account the defendants' cooperation with SafeWork NSW and other relevant personal and financial circumstances, including their capacity to pay a fine. The court also considered that both defendants had been found guilty after trial, meaning there was no discount for a guilty plea.
On the question of costs, Scotting DCJ found that the prosecution had pursued a number of arguments and particulars that were rejected at trial, including an unsuccessful application to rely on an expert report by a SafeWork NSW inspector (rejected on voir dire due to serious deficiencies), and overly broad pleadings regarding the scope of GCE's duty. The court was satisfied that a significant portion of preparation and hearing time had been spent on these failed aspects of the prosecution case, and reduced the costs order accordingly to 70% of the prosecutor's costs.
Orders Made
- GCE convicted and fined $200,000, with 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
- GCE ordered to pay 70% of the prosecutor's costs as agreed or assessed.
- Mr Grasso convicted and fined $30,000, with 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
- Mr Grasso ordered to pay 70% of the prosecutor's costs as agreed or assessed.
Key Takeaways
- A structural engineer providing advice in a demolition context has a duty under s 19(2) of the WHS Act to take reasonably practicable steps to ensure workers are not put at risk by that advice, which in this case required preparing a computer model before advising on demolition sequences involving a large and complex structure.
- The District Court imposed fines of $200,000 (company) and $30,000 (director) against maximum penalties of $1.5 million and $300,000 respectively, reflecting the objective seriousness of the offences alongside mitigating factors including financial capacity.
- Where a prosecution pursues and fails on multiple particulars or arguments at trial, including an unsuccessful expert evidence application, a court may reduce the costs order awarded to the prosecutor to reflect the time and resources spent on those failed aspects.
- Under s 122(2) of the Fines Act 1996, a court may direct that a proportion of a WHS Act fine be paid to the prosecuting regulator rather than to consolidated revenue, and the court exercised that power here in directing 50% of each fine to SafeWork NSW.
- Advice given by a specialist professional in the workplace safety context carries regulatory obligations: the absence of a written contract or formal retainer did not limit the scope of the duty GCE owed to workers who relied on its advice.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), particularly ss 19(2) and 32
- Work Health and Safety Regulation 2015 (NSW), cl 293
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Parente v R (2017) 96 NSWLR
- R v Daetz (2003) 139 A Crim R 216
- R v Thangavelautham [2016] NSWCCA 141
- Jahandideh v R [2014] NSWCCA 178
- Kenny v R [2010] NSWCCA 6
- Oudomvilay v R [2006] NSWCCA 275
- SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792 (verdict judgment)