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District Court 23 October 2020

SafeWork NSW v Deicorp Pty Ltd

[2020] NSWDC 639

Other
CRIME PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: SafeWork NSW v Deicorp Pty Ltd [2020] NSWDC 639
Court: District Court of NSW
Date: 23 October 2020
Judge: Scotting DCJ

Background

The defendant, a principal contractor operating a construction site in Kellyville, engaged a subcontractor to carry out post-tension concrete reinforcing work. A worker employed by that subcontractor was directed to locate a suitable area to land a grout pump on the ground level of one of the buildings under construction.

The site contained an onsite detention tank fitted with multiple penetration voids, each measuring 900mm by 900mm and approximately 1.6 metres deep. On 8 October 2016, the worker stepped onto a piece of unsecured plywood covering one of those voids, dislodged it with his boot, and fell through the penetration. He was knocked unconscious, lay undetected for around 20 minutes, and was ultimately hospitalised with a closed head injury, suspected spinal cord injury, and two fractured ribs. He later required cervical spine surgery.

SafeWork NSW prosecuted the principal contractor for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury. The defendant pleaded guilty.

  • Whether the defendant failed to comply with its duty as a person conducting a business under section 19(1) of the Work Health and Safety Act 2011, contrary to section 32 of that Act
  • The appropriate objective seriousness of the offence
  • What weight to give to aggravating and mitigating factors, including a prior conviction, the timing of the guilty plea, and post-incident remediation
  • The appropriate penalty, including the percentage discount for the guilty plea

Decision

Scotting DCJ assessed the objective seriousness of the offence as significant. The risk of falls through penetration voids was well recognised and governed by both the Work Health and Safety Regulation 2017 and the relevant Code of Practice. The defendant had its own Project Risk Assessment that required penetrations to be covered with secure, clearly marked covers, yet it failed to implement that standard at the site. Multiple penetration covers across two buildings were found unsecured on the day of the incident.

Several aggravating features were identified. The risk of serious injury or death was foreseeable. The defendant had a prior conviction for an identical offence arising from an incident on 12 January 2016, though that conviction was recorded after the present offence was committed. While the prior conviction did not technically establish the statutory aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, it was still relevant to where the conduct sat within the range of objective seriousness.

Mitigating factors included the defendant's cooperation with the SafeWork investigation, demonstrated remorse through its WHS Manager, substantial post-incident improvements to its penetration safety systems, and good prospects of rehabilitation. The defendant had no budgetary restrictions on WHS functions and had taken concrete steps to overhaul its procedures following the incident.

The guilty plea attracted a discount of only 15%, rather than the maximum available, because the defendant had disputed a number of alleged facts until approximately one week before the sentencing hearing, requiring witnesses to be prepared for a contested hearing. The starting point for the fine was $200,000, reduced to $170,000 after applying the plea discount.

Orders Made

  • The defendant was convicted.
  • A fine of $170,000 was imposed (being $200,000 reduced by 15% for the guilty plea).
  • The defendant was ordered to pay the prosecutor's agreed costs of $55,000.
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW).

Key Takeaways

  • A principal contractor's failure to implement its own documented safety procedures, including a Project Risk Assessment requiring secured and clearly marked penetration covers, was treated as a significant indicator of objective seriousness.
  • Under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, a prior conviction for the same offence does not automatically establish the statutory aggravating factor where that conviction was recorded after the subject offence was committed; however, the prior conduct remains relevant to the objective assessment of the case.
  • Disputing factual allegations until shortly before a sentencing hearing will limit the guilty plea discount available, even where the plea itself is entered at an early stage; the District Court allowed only 15% in these circumstances.
  • The court treated the existence of an internal risk assessment that identified the hazard but was not followed on site as compounding, rather than excusing, the safety failure.
  • Post-incident remediation, cooperation with investigators, and genuine remorse remain relevant mitigating factors in Work Health and Safety Act prosecutions, even where the objective circumstances of the offence are serious.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)
- WorkCover NSW Code of Practice: Managing the Risks of Falls at Workplaces (April 2016)

Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412