Citation: Safework NSW v Master Electrical Services Pty Ltd; Safework NSW v Tannous [2020] NSWDC 331
Court: District Court of New South Wales
Date: 26 June 2020
Judge(s): Russell SC DCJ
Background
A licensed builder (the principal contractor) was engaged to construct a four-storey residential unit complex in Sydney's south-west. The works manager, who oversaw the site daily on behalf of the builder, was responsible for health and safety at the site and had authority to engage subcontractors. A plumbing subcontractor and his crew were carrying out work on the first level of the building.
On 22 June 2017, a plumber fell from an unprotected balcony edge on the first level of the building. The scaffolding company had run out of stock and had not completed scaffolding along part of the building's frontage. The formwork that had previously served as a physical barrier along that section of balcony was removed the day before the incident, leaving the edge exposed. Neither temporary edge protection nor physical barriers were installed to replace the formwork. The only precaution taken was verbal instructions to some workers not to access the balconies, but those instructions did not reach the plumber or the three members of his crew, one of whom was an 18-year-old apprentice on only his third week on a construction site.
The plumber suffered catastrophic injuries in the fall, including a traumatic brain injury, multiple fractures, and permanent loss of use of his dominant hand. He spent a month in a coma and four months in hospital, and his treating neurologist indicated he may never return to work. Both the builder and the works manager pleaded guilty to failing to comply with their respective work health and safety duties under the Work Health and Safety Act 2011 (NSW), thereby exposing the plumber to a risk of death or serious injury.
Legal Issues
- Whether the builder, as a person conducting a business or undertaking, breached its duty under section 19 of the Work Health and Safety Act 2011 (NSW) and thereby exposed a worker to a risk of death or serious injury contrary to section 32 of that Act.
- Whether the works manager, as an individual with a work health and safety duty under section 28(b) of the Act, committed the equivalent offence.
- What penalties were appropriate for each offender, having regard to objective seriousness, mitigating and aggravating factors, the pleas of guilty, and the purposes of sentencing including general and specific deterrence.
- What costs orders should be made in favour of the prosecutor.
Decision
Both offenders pleaded guilty on agreed facts. The court accepted that each had breached their respective work health and safety duties by failing to ensure that physical edge protection was in place along the exposed balcony once the formwork was removed. The court found that verbal instructions to workers to avoid the area were plainly inadequate as a substitute for physical barriers, particularly given the known delay in scaffolding installation and the presence of workers who had not received those instructions at all.
The court assessed the objective seriousness of each offence. The breach was significant: the risk of a fall from an unprotected first-level balcony was foreseeable and preventable, and the consequences for the plumber were severe and permanent. The absence of edge protection was also contrary to the site's own Safe Work Method Statement.
For the builder, the court determined a base fine of $200,000 (out of a maximum of $1,500,000), reduced by 25 per cent to $150,000 to reflect the guilty plea. For the works manager, the court set a base fine of $20,000 (out of a maximum of $150,000), reduced by 25 per cent to $15,000. In each case, the court ordered that 50 per cent of the fine be paid to the prosecutor, as permitted under the Fines Act 1996 (NSW). The court also noted and took into account the victim impact statement detailing the plumber's ongoing physical and psychological harm.
Orders Made
- The builder (Master Electrical Services Pty Ltd) convicted and fined $150,000, with 50 per cent of that fine to be paid to the prosecutor.
- The builder ordered to pay the prosecutor's agreed costs of $25,000.
- The works manager (Nicolas Tannous) convicted and fined $15,000, with 50 per cent of that fine to be paid to the prosecutor.
- The works manager ordered to pay the prosecutor's agreed costs of $25,000.
Key Takeaways
- Verbal instructions to workers to avoid an unprotected area are not a sufficient substitute for physical edge protection. The District Court found that the failure to install temporary edge protection after the formwork was removed was a clear breach of the applicable work health and safety duty, even where some oral warnings had been given.
- Under section 32 of the Work Health and Safety Act 2011 (NSW), both a company conducting a business or undertaking and an individual works manager with safety responsibilities can be prosecuted separately for failing to comply with their respective duties where a worker is exposed to a risk of death or serious injury.
- A guilty plea attracted a 25 per cent reduction in penalty for each offender. The court applied the reduction consistently to both the corporate and individual defendants.
- The presence of workers on site who had received no warning at all, including an inexperienced apprentice, was a significant feature of the objective seriousness of the offences.
- Fines imposed on corporate defendants under work health and safety legislation can be considerably below the statutory maximum even in cases involving serious injury, reflecting the court's assessment of objective seriousness relative to the worst category of such offences.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 28, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34-38, 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- DPP v Gregory (2011) 34 VR 1
- Green v The Queen (2011) 244 CLR 462
- Jimmy v The Queen (2010) 77 NSWLR 540
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No 2) (1988) 164 CLR 465
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited (2009) 186 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited (2001) 109 IR 316