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District Court 17 December 2020

SafeWork NSW v GN Residential Construction Pty Ltd

[2020] NSWDC 764

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 GN Residential Construction Pty Ltd [2020] NSWDC 764
Court: District Court of New South Wales
Date: 17 December 2020
Judge: Scotting DCJ

Background

GN Residential Construction Pty Ltd was the principal contractor on a large mixed-use residential and commercial development at Macquarie Park, New South Wales. As part of the project, it engaged Synergy Scaffolding Service Pty Limited to design, erect, maintain, and dismantle scaffolding attached to one of the buildings on the site.

Over several months leading up to April 2019, the scaffolding structure was progressively dismantled, with most of its ties to the building removed. Despite this, workers continued to use the scaffold. Separately, pallets of bricks had been pre-loaded onto the scaffold at multiple levels, and at the time of the collapse, the live load on the structure was nearly 19,000 kilograms. The company had not confirmed the scaffold's actual load capacity with Synergy after the configuration changed.

On 1 April 2019, the scaffold collapsed. One worker, a form worker, was killed when the structure crushed him. A second worker suffered serious crush injuries and was trapped beneath the debris. Five other workers were exposed to the collapse, either by being on the scaffold when it began to fall or by being in its vicinity. The company pleaded guilty to one charge under the Work Health and Safety Act 2011 for failing its health and safety duty in a way that exposed those seven workers to a risk of death or serious injury.

  • Whether the facts established a breach of the duty under the Work Health and Safety Act 2011 exposing workers to a risk of death or serious injury (the guilty plea resolved this)
  • The appropriate sentence, including the objective seriousness of the offence
  • What weight to give to mitigating factors, including the guilty plea, cooperation, remorse, and prospects of rehabilitation
  • Whether a Work Health and Safety Project Order was appropriate in addition to a fine

Decision

Scotting DCJ assessed the objective seriousness of the offence at the upper range. The scaffold had been progressively stripped of its ties to the building over months, yet remained in active use and was significantly overloaded at the time of collapse. The company had failed to follow up with Synergy on the scaffold's load ratings after the configuration changed, had not ensured separate handover certificates were provided for the hoist and loading platform scaffold that remained in use, and had not confirmed the actual capacity of the structure before allowing it to be loaded with nearly 19 tonnes of bricks.

The fatal outcome was central to the sentencing exercise. The court acknowledged the victim impact statement from the deceased worker's family, which described both the personal loss and the family's ongoing efforts to advance workplace safety awareness. The survivor's statement conveyed lasting physical and psychological injury, including an inability to return to work and persistent survivor's guilt.

The court accepted several mitigating factors: the guilty plea, cooperation with law enforcement, demonstrated remorse, and strong prospects of rehabilitation. The company had no prior convictions. The appropriate fine before discount was assessed at $1.2 million, representing 80 percent of the $1.5 million maximum. A 25 percent reduction was applied to reflect the guilty plea, producing a final fine of $900,000.

In addition to the fine, the court imposed a Work Health and Safety Project Order. That order required the company to fund and coordinate the development of a Scaffolding Industry Safety Standard for the construction industry, to be produced through a structured working group over 12 months.

Orders Made

  • A fine of $900,000 was imposed (reduced from a starting point of $1.2 million by 25 percent for the guilty plea)
  • Pursuant to section 122(2) of the Fines Act 1996, 50 percent of the fine is to be paid to the prosecutor (SafeWork NSW)
  • The offender is to pay the prosecutor's costs as agreed or assessed
  • The offender is to enter into a Work Health and Safety Project Order, requiring it to:
  • Establish, coordinate, and fund a ten-member Scaffolding Industry Safety Standard Working Group, including an independent chair, technical specialists, SafeWork NSW, union, and industry association representatives
  • Arrange 12 meetings of the working group within 12 months, with the aim of delivering a Scaffold Industry Safety Standard covering procurement, erection, maintenance, and dismantling
  • Produce the Standard in electronic form, also printable in hard copy
  • Take steps to publish the Standard to the industry and the public
  • Pay the administrative and publication costs set out in the relevant exhibit

Key Takeaways

  • The District Court treated the offence as objectively serious, finding that the company's failure to verify load capacity, ensure updated handover certificates, and monitor the scaffold's condition after its configuration changed were central to the breach.
  • A principal contractor's obligations under the Work Health and Safety Act 2011 extend to actively monitoring the safety of subcontracted work systems, including following up when those systems are modified or partially dismantled.
  • A 25 percent discount applied for a guilty plea, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999, bringing the fine from $1.2 million to $900,000 against a maximum of $1.5 million.
  • Work Health and Safety Project Orders represent a sentencing tool available in WHS prosecutions, capable of requiring an offender to fund and drive industry-wide safety improvements rather than simply paying a fine.
  • The presence of a fatality and serious ongoing injuries to a survivor were treated as significant factors in assessing objective seriousness, even where the guilty plea and other mitigating factors were accepted.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)

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