Citation: SafeWork NSW v Can Do Projects Pty Ltd; SafeWork NSW v Yekta [2020] NSWDC 338
Court: District Court of New South Wales
Date: 1 July 2020
Judge: Scotting DCJ
Background
Can Do Projects Pty Ltd (CDP) was a carpentry subcontractor engaged to supply materials and carry out carpentry work at a residential development in Gilead, NSW. Behnam Yekta was CDP's sole director and worked on site as a carpenter. On 27 July 2017, a worker employed by CDP, Mr Salehiroshankouhi, fell approximately 3.66 metres through an unguarded window opening on the first floor of a partially completed unit into a courtyard void below.
The scaffold that had previously provided fall protection in the void was no longer in place on the morning of the incident. At the time of the fall, Mr Yekta and Mr Salehiroshankouhi were in the process of installing timber guard rails across the window openings. CDP had not waited for alternative fall protection to be erected before beginning that work, despite adequate mobile scaffolding being available on site.
Mr Salehiroshankouhi suffered five broken ribs, a broken finger, pulmonary contusions, and lacerations. He was hospitalised for approximately one week and continued to undergo rehabilitation. Both CDP and Mr Yekta were prosecuted by SafeWork NSW under the Work Health and Safety Act 2011 (the Act).
Legal Issues
- Whether CDP, as a person conducting a business or undertaking, failed to comply with its primary health and safety duty under section 19(1) of the Act, thereby exposing a worker to a risk of death or serious injury contrary to section 32.
- Whether Mr Yekta, as an officer of CDP, failed to comply with his duty under section 27(1) of the Act in the same circumstances.
- What penalties were appropriate, having regard to objective seriousness, aggravating and mitigating factors, capacity to pay, and the discount available for early guilty pleas.
- Whether a disputed fact (that a site supervisor had directed Mr Yekta not to work near the void until the scaffold was in place) had been established beyond reasonable doubt.
Decision
Both CDP and Mr Yekta pleaded guilty. On the disputed fact, Scotting DCJ was not satisfied beyond reasonable doubt that the site supervisor had given Mr Yekta an explicit direction not to work near the void that morning. The court accepted that Mr Yekta did not recall receiving such a direction, and the supervisor's own cross-examination acknowledged he may not have given one. However, the court found that Mr Yekta was already on notice through CDP's own safety documentation and prior toolbox training that no work was to be performed at height without fall protection in place.
On objective seriousness, the court assessed the offending as being in the mid-range. The risk of serious injury or death from working near an unprotected opening at that height was obvious, and CDP had failed to implement a straightforward precaution (waiting for existing mobile scaffolding to be deployed) before commencing work. Mitigating factors included the offenders' cooperation with the SafeWork investigation, the absence of prior prosecutions or improvement notices, and genuine expressions of remorse and accepted responsibility.
The court applied a 25% discount to reflect the utilitarian value of the guilty pleas, consistent with the principles in R v Thomson & Houlton and R v Borkowski. Neither offender ultimately submitted a reduced capacity to pay, though CDP's accounts indicated it was a small company with some financial capacity. Mr Yekta held undisclosed personal assets, including a home and an investment property.
CDP was fined $60,000 (reduced from $80,000) and Mr Yekta was fined $15,000 (reduced from $20,000), both well below the respective maximum penalties of $1.5 million and $300,000. Each offender was ordered to pay the prosecutor's costs.
Orders Made
- CDP convicted and fined $60,000.
- Mr Yekta convicted and fined $15,000.
- Each offender ordered to pay the prosecutor's costs 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
- An officer of a company conducting a business or undertaking bears a personal health and safety duty under section 27(1) of the Work Health and Safety Act 2011, separate from and in addition to the company's own duty under section 19(1).
- The District Court did not treat the absence of a specific verbal direction from the principal contractor's supervisor as diminishing the offenders' culpability, where the obligation to maintain fall protection was already established through the site's documented safety system.
- A 25% discount on penalty was applied for early guilty pleas, consistent with the principle that earlier pleas attract greater discounts and also reflect remorse.
- Where an offender seeks to reduce a fine on capacity-to-pay grounds, the evidentiary onus rests on that offender; failure to disclose personal assets may limit the weight given to any financial hardship argument.
- Fines set significantly below statutory maximums can still reflect mid-range objective seriousness when mitigating factors, including cooperation, no prior regulatory history, and remorse, are present.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160