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District Court 9 October 2020

SafeWork NSW v Royal Demolition & Excavation Pty Limited

[2020] NSWDC 598

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

Citation: SafeWork NSW v Royal Demolition & Excavation Pty Limited [2020] NSWDC 598
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Russell SC DCJ

Background

Royal Demolition & Excavation Pty Limited was a corporation engaged in demolition and excavation services. In May 2017, it was contracted to carry out demolition work and subsequent ground levelling at a residential site in East Killara. A 16-year-old labourer, employed only four weeks earlier and paid $150 cash per day, was assigned to separate and pile materials during the ground levelling phase.

At approximately 1:00pm on 26 May 2017, the labourer bent down to tie his shoelace, slipped, and was struck and run over by a reversing 23-tonne excavator. His body was compressed into the soft, muddy ground. He sustained life-threatening injuries to his pelvis, internal organs, legs, and hands, and remained subject to workers compensation assessment nearly two years later.

Royal Demolition pleaded guilty to a charge under sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) (the Act): as a person conducting a business or undertaking, it failed to comply with its work health and safety duty, thereby exposing the labourer to a risk of death or serious injury. The maximum penalty for the offence was a fine of $1,500,000.

  • What was the objective seriousness of the offence, having regard to the multiple safety failings present?
  • What mitigating and aggravating factors were relevant to sentence?
  • What discount should apply for the guilty plea?
  • What financial penalty was appropriate, taking into account the offender's capacity to pay?
  • Whether a training order under section 241 of the Act was warranted?
  • Whether prosecution costs should be awarded?

Decision

The court identified several compounding failures that contributed to the incident. Royal Demolition had not conducted an adequate risk assessment. The excavator it used was in poor condition, with broken mirrors on both sides and a non-functional reversing alarm. No exclusion zone was established around the operating excavator, despite the company's own Safe Work Method Statement having identified the risk of machinery striking site workers. The labourer had been given only a vague instruction to stay "a few metres away."

Further aggravating the picture, the labourer was a young and vulnerable worker with limited experience in demolition or construction. He had not been directly supervised, had not been provided with adequate information or training, and was not wearing a high-visibility vest at the time of the incident, despite the SWMS requiring one. Royal Demolition had also failed to comply with a prior Improvement Notice, which the court treated as an aggravating factor.

The court noted that no comparable sentencing decision was of direct assistance, observing that the combination of a worker being run over by an excavator and surviving was, to its knowledge, unprecedented in the cases referred to it. The court assessed the appropriate fine at $240,000 before discount, then applied a 15% reduction to reflect the guilty plea, arriving at a final fine of $204,000. Pursuant to section 122(2) of the Fines Act 1996, 50% of that fine was directed to be paid to the prosecutor, SafeWork NSW.

The court also made a training order under section 241 of the Act, requiring the company to arrange for its active director to complete a due diligence course with a Registered Training Organisation within six months. The director, who was present in court, consented personally to attend. An order for prosecution costs was also made.

Orders Made

  • Royal Demolition & Excavation Pty Limited convicted and fined $204,000 (being $240,000 reduced by 15% for the guilty plea)
  • 50% of the fine directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
  • Royal Demolition & Excavation Pty Limited to arrange for its active director to attend a due diligence course conducted by a Registered Training Organisation within six months, and to provide written evidence of satisfactory completion to SafeWork NSW
  • Royal Demolition & Excavation Pty Limited to pay the prosecutor's costs

Key Takeaways

  • The District Court treated multiple concurrent safety failures as relevant to the objective seriousness of a WHS offence: the absence of an adequate risk assessment, no exclusion zone, a defective excavator with broken mirrors and no reversing alarm, failure to provide and enforce the use of hi-vis PPE, and inadequate supervision and training of a young worker all compounded one another.

  • Prior non-compliance with an Improvement Notice issued under the Act was treated as an aggravating factor at sentencing.

  • A 15% guilty plea discount was applied to the fine, reducing it from $240,000 to $204,000 against a statutory maximum of $1,500,000. The final penalty reflected the court's assessment of the offence as falling into the moderate range of objective seriousness, with some mitigation for the company's cooperation and expression of remorse.

  • Under section 241 of the Act, courts can impose training orders requiring individuals connected with the offending corporation to complete accredited due diligence courses, in addition to financial penalties.

  • Where a worker is assigned a safety-critical role (such as acting as a spotter near overhead powerlines), failing to adequately identify and control overlapping risks from the same plant will be treated as a significant omission rather than a minor oversight.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155, 241
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 36, 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (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] HCA 14; (1988) 164 CLR 465