Citation: SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614
Court: District Court of New South Wales
Date: 16 October 2020
Judge(s): Russell SC DCJ
Background
J & CG Constructions Pty Limited was the principal contractor for the construction of a 39-room boarding house at Kingsford in Sydney. The company engaged Orbit Formwork Pty Ltd as a subcontractor to undertake formwork, steel-fixing, and concreting at the site. On 23 March 2017, Orbit's workforce included Ali Jabur, a casual formwork labourer with no prior formwork experience whose first day on this particular site it was.
Mr Jabur was directed to strip formwork columns on Level 2 of the building. Level 2 contained an unprotected void measuring approximately 2.3 metres by 1.8 metres, with a six-metre drop to the basement below. A gap of 1.17 metres also existed between the form deck and adjacent scaffolding. Mr Jabur was not given a site induction, was not warned about the adjacent unprotected edge, and was paired with another worker who also lacked formwork experience.
During the course of that morning's work, Mr Jabur fell six metres from the unprotected edge of the concrete slab floor. He sustained multiple fractures, lacerations, and muscular injuries. The fall left him with extensive and ongoing physical and psychological injuries, including permanent limitations to mobility, chronic pain, depression, and an inability to return to labouring work.
Legal Issues
- Whether J & CG Constructions, as a person conducting a business or undertaking, failed to comply with its primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing a worker to a risk of death or serious injury contrary to section 32 of that Act.
- The appropriate penalty, having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, and the plea of guilty.
- The quantum of prosecution costs.
Decision
The court sentenced J & CG Constructions following its guilty plea. In assessing objective seriousness, Russell SC DCJ noted that the risk posed by the void was known to Constructions management well before the incident. Concerns about inadequate scaffolding in the building's return had been raised in meetings on 13 and 14 March 2017, and an email requesting a safety check was sent on 15 March 2017. Despite this known and identified risk, work continued on Level 2 on the day of the incident without adequate fall protection.
The court identified several specific failings: the absence of adequate exclusion zones to prevent access to the risk area; failure to install catch decks and adequate handrails before commencing work; failure to use individual fall arrest systems; and a failure to adequately implement the company's own Work Health and Safety Management Plan. The site's Safety Officer was based at a different project and had limited involvement with the site. The project manager attended for only a few hours, three to four days per week.
The court assessed the appropriate fine at $240,000 before applying a 25 percent discount to reflect the plea of guilty, resulting in a fine of $180,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine was directed to be paid to the prosecutor. Prosecution costs, agreed between the parties at $48,000, were also ordered.
Orders Made
- J & CG Constructions Pty Limited convicted on 6 October 2020.
- Fine of $180,000 imposed (reduced by 25% from $240,000 to reflect the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- J & CG Constructions Pty Limited to pay the prosecutor's agreed costs of $48,000.
Key Takeaways
- A principal contractor's knowledge of an identified safety risk, combined with a failure to act on that knowledge before injury occurs, is a significant factor in assessing the objective seriousness of a work health and safety offence.
- Under section 32 of the Work Health and Safety Act 2011 (NSW), the maximum penalty for a category 2 offence (failure to comply with a duty exposing a person to a risk of death or serious injury) is a fine of $1,500,000 for a corporation.
- The District Court applied a 25% discount to the base penalty to reflect the utilitarian value of an early guilty plea, consistent with established sentencing principles.
- Inadequate implementation of a company's own documented safety management system, including insufficient on-site supervision and marginal involvement by the nominated safety officer, contributed to the finding of objective seriousness.
- Where the risk is known and documented but work is permitted to continue without adequate controls in place, the sentencing court treats the failure as particularly serious, even in the absence of deliberate disregard.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2011, cll 78, 79, 300
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263; (2001) 109 IR 316
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125