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District Court 19 June 2020

SafeWork NSW v Hadcon Constructions Pty Ltd

[2020] NSWDC 316

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING A BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Strathdee DCJ

Background

The defendant, a residential building and construction company, was the principal contractor for a six-storey apartment development in Lidcombe, NSW. In that capacity, it held management and control of the site and was ultimately responsible for worker safety. It engaged a scaffolding contractor, a rendering and painting contractor, and various subcontractors to carry out works on the site.

One of the workers on site, a sole director of a rendering subcontractor, was engaged to assist with rendering work. On 20 June 2017, while working on the Level 4 scaffolding, he fell to Level 3 of the building, striking his head on a concrete balcony. He was pronounced brain-dead later that day and died the following day from a severe traumatic brain injury.

Post-incident inspections by SafeWork NSW revealed widespread scaffolding deficiencies: unsecured and missing planks, rusted and snapped tie wires, and evidence that the scaffolding had been altered by non-scaffolding workers without proper oversight. The defendant's site management system had failed to prevent or detect these dangerous conditions.

  • Whether the defendant failed to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), namely to ensure so far as is reasonably practicable the health and safety of workers while at work in its business or undertaking
  • What was the appropriate penalty under section 32 of the Act, having regard to the objective seriousness of the offence, mitigating factors, aggravating factors, and the guilty plea
  • What discount should apply to the fine in light of the guilty plea

Decision

The defendant pleaded guilty on 20 April 2020 to a Category 2 offence under the Work Health and Safety Act 2011 (NSW), which carries a maximum penalty of $1,500,000. The court proceeded to sentencing on the basis of an agreed statement of facts.

The court assessed the objective seriousness of the offence. The defendant knew that scaffolding was being altered by non-scaffolding workers and had a procedure in place requiring alterations to be performed only by the scaffolding contractor, but that procedure was not adequately implemented or enforced. Inspections failed to identify or address the dangerous state of the scaffolding. The court identified the death of the worker as an aggravating factor under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court accepted several mitigating factors. The defendant co-operated fully with the SafeWork investigation and complied with all statutory notices issued. The sole director expressed genuine contrition and remorse. The court noted the defendant's good corporate citizenship, including charitable contributions, and accepted references tendered in evidence. Significantly, the court also took into account the serious psychiatric and psychological impact the incident had on the director personally, treating this as a matter calling for some leniency and indicating a low likelihood of reoffending.

The court determined the appropriate fine before discount was $120,000. A 25% discount was applied to reflect the utilitarian value of the guilty plea, consistent with the relevant sentencing principles, producing a final fine of $90,000.

Orders Made

  • The defendant is convicted of the offence
  • The defendant is fined $90,000 (being a pre-discount figure of $120,000, reduced by 25% for the guilty plea)
  • 50% of the fine is to be paid to the prosecutor
  • The defendant is to pay the prosecutor's costs as agreed or assessed

Key Takeaways

  • A principal contractor's liability under section 19(1) of the Work Health and Safety Act 2011 (NSW) extends to ensuring worker safety across the site, including through adequate supervision of subcontractors' activities that affect site infrastructure such as scaffolding.
  • Having a safety system in place is insufficient where that system is not adequately implemented or enforced. The court treated the gap between the defendant's stated procedure for scaffolding alterations and its actual enforcement as central to the finding of liability.
  • Under section 32 of the Act, the maximum penalty for a Category 2 offence involving a corporation is $1,500,000. The court's starting point of $120,000 reflected a relatively modest assessment of objective seriousness compared to that maximum.
  • A 25% discount on the fine was applied for the guilty plea, consistent with the approach in Bulga Underground Operations v Nash [2016] NSWCCA 37 and the principle that the discount reflects the utilitarian value of the plea rather than remorse alone.
  • Personal psychiatric harm suffered by the sole director of a corporate defendant, while not a listed mitigating factor under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), was treated as a relevant consideration going to the impact of the offence and the likelihood of reoffending.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D
- Fines Act 1996 (NSW)

Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Nash 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
- Markarian v The Queen (2005) 228 CLR 357
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
- Orbit Drilling v The Queen [2012] VSCA 82
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68