Citation: SafeWork NSW v NonAbel Concrete Pump Pty Ltd; SafeWork NSW v Bilal Hamdan [2020] NSWDC 65
Court: District Court of New South Wales
Date: 30 March 2020
Judge: Russell SC DCJ
Background
NonAbel Concrete Pump Pty Limited provided concrete pumping and placement services. On 27 March 2017, the company was engaged as a subcontractor on a residential construction site in Fairfield, NSW. Bilal Hamdan was the company's sole director, secretary and shareholder, and one of its two employees.
The other employee was Souhayb Jamal, a 27-year-old labourer and concrete pump linesman who had been employed for between three and seven days. On the morning of the incident, Mr Jamal was listed as "new" on the site's daily sign-in sheet. His English was limited and his site induction had not been completed.
While attempting to clear a blockage in a concrete delivery hose on Level 5 of the site, Mr Hamdan used compressed air to perform a "blowout." The hose, which was more than double the manufacturer's recommended maximum length, was not secured or anchored. When the compressed air was released, the hose whipped violently and the metal coupling at its end struck Mr Jamal in the head. He was not wearing a safety helmet at the time. Mr Jamal died from his injuries.
Legal Issues
- Whether NonAbel, as a person conducting a business or undertaking, failed to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Jamal to a risk of death or serious injury contrary to section 32.
- Whether Mr Hamdan, as a company officer, failed to exercise due diligence to ensure NonAbel's compliance with its WHS duty, contrary to section 32.
- What the appropriate penalty was for each offender, taking into account objective seriousness, mitigating and aggravating factors, the pleas of guilty, and Mr Hamdan's capacity to pay.
- Whether additional orders, including a training order and a WHS undertaking order, were appropriate for Mr Hamdan.
Decision
Both NonAbel and Mr Hamdan entered guilty pleas. The court assessed the objective seriousness of the offending in the context of multiple compounding failures: the hose was more than twice the manufacturer's recommended maximum length; a dangerous coupling was fitted to its end; the hose was not anchored or secured; no exclusion zone was established around the blowout area; Mr Jamal had received no adequate instruction or supervision; and the compressed air blowout procedure itself created a foreseeable risk of serious injury or death.
The court assessed an appropriate base fine of $500,000 for NonAbel (against a maximum of $1,500,000) and $50,000 for Mr Hamdan (against a maximum of $150,000). Each fine was then reduced by 25 percent to reflect the guilty pleas. Mr Hamdan's fine was further reduced to $10,000 to reflect his limited financial capacity to pay. In each case, the court ordered that 50 percent of the fine be paid to SafeWork NSW as the prosecutor, pursuant to section 122(2) of the Fines Act 1996.
The court made a training order requiring Mr Hamdan to complete, within six months, a work health and safety risk management course for supervisors and managers and a due diligence course for senior managers and directors, both conducted by a Registered Training Organisation. The court declined to make the additional WHS undertaking order sought by the prosecutor, finding no evidence that ongoing supervision of Mr Hamdan over the following 12 months was warranted. The court noted that any failure to comply with the training order would itself constitute a criminal offence under section 242 of the Act.
Orders Made
NonAbel Concrete Pump Pty Limited:
- Convicted of the section 32 offence.
- Fined $375,000 (base fine of $500,000, reduced by 25% for guilty plea).
- 50% of the fine directed to SafeWork NSW as prosecutor.
- Ordered to pay the prosecutor's costs.
Bilal Hamdan:
- Convicted of the section 32 offence.
- Fined $10,000 (base fine of $50,000, reduced by 25% for guilty plea and further reduced for limited capacity to pay).
- 50% of the fine directed to SafeWork NSW as prosecutor.
- Ordered to pay the prosecutor's costs.
- Ordered to complete, within six months, a WHS risk management course for supervisors and managers and a due diligence course for senior managers and directors, both conducted by a Registered Training Organisation, and to provide written evidence of completion to the prosecutor.
- Application for a WHS undertaking order refused.
Key Takeaways
- Multiple simultaneous safety failures, including an oversized hose, an unsecured hose, no exclusion zone, and inadequate supervision of a new and inexperienced worker, collectively elevated the objective seriousness of the offending even where each failure might individually be considered less grave.
- A guilty plea attracted a 25 percent reduction to the base fine for both the corporate and individual offenders, consistent with the sentencing principles under the Crimes (Sentencing Procedure) Act 1999.
- Where an individual offender's capacity to pay is limited, the District Court may reduce the fine significantly below the level that would otherwise reflect the objective and subjective features of the offending.
- Under section 122(2) of the Fines Act 1996, the court has power to direct that a portion of a WHS fine be paid to the prosecuting regulator; here, 50 percent was directed to SafeWork NSW in both matters.
- Training orders are available as a sentencing tool for individual WHS offenders, and non-compliance with such an order constitutes a separate criminal offence under section 242 of the Work Health and Safety Act 2011.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 17, 19, 27, 32, 239, 241, 242
- Work Health and Safety Regulation 2011 (NSW), cls 34-38, 214
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 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
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Ku-ring-gai Council v John David Chia (No 16) [2019] NSWLEC 184
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Morris McMahon and Co Pty Ltd v SafeWork NSW [2019] NSWCCA 36
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Rahme (1989) 43 A Crim R 81
- 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