Citation: SafeWork NSW v Erector Group Pty Limited; SafeWork NSW v Rong Feng Wang [2020] NSWDC 22
Court: District Court of New South Wales
Date: 26 February 2020
Judge: Russell SC DCJ
Background
A residential development project at Liverpool Road, Enfield involved excavation work for a six-storey mixed-use building. The principal contractor, a construction management company, engaged a demolition subcontractor to carry out bulk and detailed excavation at the site. The adjacent property was a brick building constructed in 1935, occupied at ground level by a hairdressing business and at first floor level by a residential tenant.
The structural engineer engaged by the principal contractor had provided detailed technical drawings that included explicit warnings: the foundations of the adjacent building had to be investigated and verified before work began, appropriate support mechanisms had to be designed and implemented, and excavation could not extend below prescribed angles relative to existing footings. These requirements were communicated to the subcontractor, but no adequate supervision or enforcement followed.
The excavation proceeded without those precautions being taken. The adjacent building partially collapsed, exposing four people, including the business owner and her tenant-employee, to a risk of death or serious injury. SafeWork NSW prosecuted both the principal contractor and its managing director.
Legal Issues
- Whether the principal contractor breached its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW) by failing to take reasonably practicable measures before and during excavation, contrary to s 32 of the Act
- Whether the managing director, as an officer of the company, breached his due diligence duty under s 27 of the Act to ensure the company fulfilled its health and safety obligations
- What sentence was appropriate for each offender, having regard to objective seriousness, mitigating factors, and the purposes of sentencing including general and specific deterrence
Decision
The court accepted guilty pleas from both the company and its managing director. The facts were largely agreed. The structural engineer's drawings had set out clear requirements for pre-excavation investigation, engineer consultation, and maintenance of specific excavation angles relative to adjacent footings. The court found that neither the company nor its director ensured those requirements were followed, and that no adequate safe work procedure was developed, implemented, or enforced.
The court assessed the objective seriousness of the offences as moderate. The risk of harm was high given the proximity of occupied premises to deep excavation work, and the consequences were serious: a building partially collapsed. However, the court noted that the primary cause of the collapse was the conduct of the subcontractor in excavating too close to the adjacent building, a factor that tempered the objective seriousness of the principal contractor's own failure.
On penalty, the court balanced the seriousness of the breaches against mitigating factors, including the guilty pleas (attracting a 10% discount), the absence of prior convictions, and the company's co-operation with the investigation. The court also considered that the company, while not a large corporation, had not raised any incapacity to pay. General deterrence was a significant consideration given the prevalence of risks associated with excavation work near existing structures.
The managing director's fine was set at a lower level than the company's, reflecting the different maximum penalty applicable to officers under s 27 as compared to the corporate duty under s 19. Both fines were reduced by 10% for the guilty pleas.
Orders Made
Erector Group Pty Limited:
- Convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fined $180,000 (reduced from $200,000 by 10% for guilty plea)
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Rong Feng Wang:
- Convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fined $36,000 (reduced from $40,000 by 10% for guilty plea)
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Key Takeaways
- A principal contractor's obligation under s 19 of the Work Health and Safety Act 2011 (NSW) extends to ensuring that subcontractors working on site receive clear instructions and adequate supervision, not merely to providing them with engineering documents.
- Under s 27 of the Act, an officer's duty of due diligence is personal and distinct from the company's own duty; a director can be convicted and fined separately where the company's safety obligations are not met.
- Where the immediate physical cause of harm is a subcontractor's conduct, that factor may reduce the objective seriousness of the principal contractor's breach, but does not extinguish liability for failures of instruction and supervision.
- Guilty pleas attracted a 10% discount in both proceedings, consistent with the principles in Cameron v The Queen and the Crimes (Sentencing Procedure) Act 1999 (NSW), s 22.
- General deterrence carries significant weight in WHS sentencing, particularly where the risk arises from a foreseeable and manageable hazard in a common construction context.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 8, 19, 27, 32
- Work Health and Safety Regulation 2011 (NSW), cl 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- State Emergency and Rescue Management Act 1989 (NSW), s 60L
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- SafeWork NSW v ADN Investments Pty Limited; SafeWork NSW v Yassine [2019] NSWDC 469
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263
- Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465