Citation: SafeWork NSW v Calibre Construction Group Pty Ltd [2020] NSWDC 603
Court: District Court of NSW
Date: 09 October 2020
Judge: Scotting DCJ
Background
The defendant, a principal contractor for a 14-storey mixed-use development at Wolli Creek, pleaded guilty to a charge under the Work Health and Safety Act 2011 (WHS Act). The charge arose from the collapse of an incomplete in-fill masonry wall along the boundary between the construction site and an adjacent property. The wall had been built without reinforcement, had not been secured to the overhead concrete slab, and was not braced.
A worker employed by a separate subcontractor was working directly beneath the wall on the adjacent site when it collapsed. Falling masonry blocks struck him, causing serious injuries including lacerations to his head and right leg. The wall had been constructed under the supervision of the defendant's site foreman, and the cause of the collapse could not be determined conclusively.
The defendant, through its sole director, acknowledged that its site foreman had made an error of judgment in how the wall was constructed and left incomplete, and accepted corporate responsibility for that error.
Legal Issues
- What penalty was appropriate for a contravention of the primary duty of care under section 19(2) of the WHS Act, where a worker was exposed to a risk of death or serious injury, contrary to section 32?
- What weight should be given to mitigating factors including the guilty plea, the defendant's prior safety record, and remedial steps taken after the incident?
- What weight should be given to the defendant's financial capacity to pay a fine, including the impact of the COVID-19 pandemic on its business?
- Whether additional orders, including a training order and a WHS undertaking, were appropriate in the circumstances.
Decision
The court convicted the defendant and imposed a fine of $60,000, reduced from a base amount of $75,000 to reflect a 20 percent discount for the guilty plea. The maximum penalty for the offence was $1.5 million, placing the imposed fine well below the statutory ceiling, reflecting the court's assessment of objective seriousness alongside the mitigating factors present.
The court took into account several mitigating considerations. The defendant had an established safety system in place before the incident, had employed a full-time WHS officer, and had sent staff to external training. After the incident, the defendant introduced more rigorous oversight practices, including a double-checking inspection regime, adoption of safety management software, and a shift away from in-fill masonry walls in favour of a reinforced concrete alternative.
The court also considered the defendant's financial position. The COVID-19 pandemic had reduced its pipeline of work, and the court accepted that a significantly larger fine would place the business in a precarious financial position, though it noted the defendant did have some capacity to pay.
On the question of additional orders, the court determined it was appropriate to make both a training order and a WHS undertaking order. The training order required 12 employees to complete five courses each with a SafeWork NSW-approved training provider, with at least 40 percent of those courses to be related to high-risk construction work. The court observed that externally delivered training introduces independent perspectives that can improve internal safety processes, and that the defendant should retain control over which specific courses were chosen, given its knowledge of its own operations.
Orders Made
- The defendant is convicted of the offence under section 32 of the WHS Act.
- A fine of $60,000 is imposed (reduced by 20% from $75,000 for the guilty plea).
- The defendant is to pay the prosecutor's agreed costs of $32,000.
- Training order: the defendant is to arrange and pay for 12 employees to each undertake five courses with a SafeWork NSW-approved WHS training provider, with at least 40% of those courses related to high-risk construction work (as defined by clause 291 of the Work Health and Safety Regulation 2017), to be completed on or before 8 October 2021.
- WHS Undertaking order: the defendant is to enter into a Work Health and Safety Undertaking under section 239 of the WHS Act for two years, requiring it to appear before the court if called upon, refrain from further WHS Act offences, comply with the training order and provide affidavit evidence of compliance by 5 November 2021, and notify the Registrar of any change of address for service.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- A principal contractor's responsibility for day-to-day site supervision extends to the conduct of subcontractors working under its direction, such that errors of judgment by its own site foreman can ground corporate liability under the WHS Act.
- The District Court confirmed that a guilty plea attracts a discount (here 20%) even in work health and safety prosecutions, consistent with the principles in R v Thomson & Houlton and related sentencing authorities.
- Pre-existing safety systems and staff training programs can constitute meaningful mitigation, but do not displace a finding of culpability where specific, identifiable precautions, such as bracing and reinforcing an incomplete masonry wall, were not followed.
- A defendant's financial capacity, including disruption caused by the COVID-19 pandemic, is a relevant consideration in calibrating the quantum of a fine, provided the court is satisfied the defendant retains some capacity to pay.
- Training orders and WHS undertaking orders are available as supplementary sentencing tools under the WHS Act, designed to reinforce the legislation's self-regulatory character while encouraging the use of independent, accredited training providers.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(2), 32, 239, 271
- Work Health and Safety Regulation 2017 (NSW), clause 291
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), section 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