Citation: SafeWork NSW v Wang; SafeWork NSW v Effective Building and Construction Pty Ltd; SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 260
Court: District Court of New South Wales
Date: 22 May 2020
Judge: Scotting DCJ
Background
In August 2017, a 6.5-metre-high brick cavity partition wall collapsed at a residential construction site in Carlingford, NSW. Two carpenters were working at the base of the wall when it fell. One survived with minor injuries; the other, Mr Quoc Thong Tran, was killed. Wind gusts on the day reached 74 km/h.
Three duty-holders were prosecuted by SafeWork NSW. Effective Building and Construction Pty Ltd (EBC) was the principal contractor for the duplex project. WZY Developments Pty Ltd, whose sole director was Jianen Wang, had been engaged by EBC to manage day-to-day activities on site and to engage subcontractors. NSW Bricklaying Pty Ltd (NSWB) was the bricklaying subcontractor that built the partition wall.
Each was charged with failing to comply with a health and safety duty under the Work Health and Safety Act 2011, thereby exposing Mr Tran to a risk of death or serious injury. Wang and EBC pleaded guilty. NSWB was convicted after an ex-parte hearing (meaning it did not appear and the matter was determined in its absence), addressed in a separate verdict judgment.
Legal Issues
- What penalties were appropriate for each of the three convicted duty-holders under section 32 of the Work Health and Safety Act 2011?
- How should the objective seriousness of each offence be assessed, including the adequacy of the bracing, the absence of safe work method statements and risk assessments, and the absence of any exclusion zone?
- What weight should be given to mitigating factors, including guilty pleas, cooperation with SafeWork NSW, remorse, and personal circumstances?
- What discount should apply to the fine for Wang and EBC in recognition of their guilty pleas?
- Should the fine for EBC be reduced further given its limited financial capacity, particularly in the context of COVID-19?
- What proportion of the fines should be paid to the prosecutor under the Fines Act 1996?
Decision
Scotting DCJ found that the wall's collapse resulted from a series of failures by all three parties. The temporary bracing reached only half the wall's height, lacked diagonal members, and no exclusion zone was established around the wall. No Safe Work Method Statement existed for the bricklaying work, and no risk assessment was conducted by EBC, WZY, or NSWB. Published WorkCover NSW guides had specifically identified the risks of cavity wall collapse and prescribed control measures including bracing, exclusion zones, and wind-speed restrictions, but none were implemented.
For Wang and EBC, the court identified the objective seriousness of each offence as a significant sentencing consideration, alongside the need for general deterrence in the construction industry. Both offenders received credit for their guilty pleas, each attracting a 25% discount. The court acknowledged Wang's personal remorse, his visit to the deceased's family shortly after the incident, his limited English literacy, and the emotional toll the incident had taken on him. Wang had not returned to the building industry following the collapse.
EBC was unrepresented at sentencing. The court accepted that EBC's capacity to pay had been genuinely affected by the COVID-19 pandemic and its consequent reduction in work, and it reduced EBC's fine accordingly. The court noted that a limited capacity to pay is relevant but not decisive, citing Jahandideh v R, and that a substantial fine may still be warranted by the seriousness of the offence and the need for general deterrence.
NSWB, having been convicted after an ex-parte hearing with no appearance and no mitigating material before the court, received a significantly higher fine of $500,000, reflecting the absence of any plea discount, cooperation, or mitigating circumstances.
Orders Made
- Wang convicted and fined $60,000 (being $80,000 reduced by 25% for guilty plea), with prosecutor's costs to be paid as agreed or assessed.
- EBC convicted and fined $60,000 (being $80,000 reduced by 25% for guilty plea), with prosecutor's costs to be paid as agreed or assessed.
- NSWB convicted and fined $500,000, with prosecutor's costs to be paid as agreed or assessed.
- In each matter, 50% of the fine ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
Key Takeaways
- All three duty-holders were convicted and fined for exposing a worker to a risk of death or serious injury arising from the same incident, demonstrating that multiple parties in a construction chain can each bear independent criminal liability under the Work Health and Safety Act 2011.
- A 25% discount on the fine applied to both Wang and EBC in recognition of their guilty pleas, consistent with the approach to sentencing discounts in New South Wales criminal proceedings.
- Under section 6 of the Fines Act 1996, an offender's financial capacity is relevant to the quantum of a fine but is not decisive; a substantial fine may still be warranted by objective seriousness and general deterrence, even where capacity to pay is limited.
- The absence of any plea, cooperation, or mitigating material from NSWB, which did not participate in proceedings, resulted in a fine of $500,000, significantly higher than those imposed on the other two defendants and closer to the statutory maximum of $1.5 million.
- Published industry guidance, specifically the WorkCover NSW guides on masonry wall safety, formed part of the factual context in assessing what duty-holders knew or ought to have known about the risks of inadequate bracing and the absence of exclusion zones.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(m)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412