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District Court 18 December 2020

SafeWork NSW v Sky High Rigging Services Pty Ltd

[2020] NSWDC 778

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSON UNDERTAKING BUSINESS REASONABLE PRACTICABILITY LIKELIHOOD OF RISK

Citation: SafeWork NSW v Sky High Rigging Services Pty Ltd [2020] NSWDC 778
Court: District Court of New South Wales
Date: 18 December 2020
Judge: Strathdee DCJ

Background

Sky High Rigging Services Pty Ltd is a small rigging business with six employees, providing labour for the erection, servicing, and maintenance of construction hoists. It supplied workers to install and maintain a materials hoist at a 32-storey residential construction project in Liverpool, New South Wales. The materials hoist was owned by a related company, Sky High Group Pty Ltd, and hired to the principal contractor.

On 19 March 2018, a rigger employed by the defendant was left alone on the hoist to complete the final level jump and set travel limits from a small platform above the motor panel. He was found trapped between the edge of the hoist deck and a steel mast tie brace at Level 31. Resuscitation was attempted for over an hour. He was pronounced dead at the scene, having suffered traumatic asphyxiation from crush injuries to the chest and neck.

The defendant pleaded guilty to one offence under section 32 of the Work Health and Safety Act 2011 (NSW), which involves a category 2 failure by a person conducting a business or undertaking (PCBU) to comply with a health and safety duty, where that failure exposes a person to a risk of death or serious injury. The maximum penalty was $1,500,000.

  • What was the appropriate sentence for the defendant's guilty plea to a category 2 WHS offence under section 32 of the Work Health and Safety Act 2011 (NSW)?
  • How should the objective seriousness of the offence be assessed, including the foreseeability of the risk and what reasonably practicable steps could have been taken?
  • What weight should be given to mitigating factors, including the early guilty plea, the company's size, post-incident remediation, and expressions of remorse?
  • Whether the director's affidavit evidence genuinely demonstrated acceptance of responsibility, or amounted to deflecting blame onto an employee.

Decision

The District Court assessed the objective seriousness of the offence as falling in the mid-range. The risk of a worker being caught in the shear point between the hoist deck and a mast tie while working alone on or near the hoist was foreseeable. The defendant knew, or ought reasonably to have known, of that risk. Reasonably practicable measures were available, including requiring two workers to be present at all times during such tasks and installing interlocked barriers to prevent access to danger zones while the hoist was operating.

The court accepted that the defendant had taken meaningful remedial steps after the incident, including engineering controls in the form of interlocked barriers. This supported a finding that the company had reasonable prospects of rehabilitation. However, general deterrence remained a significant sentencing consideration in WHS prosecutions, and the court emphasised that the fine must not be so discounted as to be meaningless.

The court rejected the submission that the director's affidavit demonstrated genuine acceptance of responsibility. Strathdee DCJ found that the affidavit largely attributed the breach to a failure by the leading hand to follow existing safety systems, rather than acknowledging the defendant's own culpability as a PCBU. This approach did not entitle the defendant to additional leniency on the basis of remorse or contrition.

The court set the base fine at $600,000, representing 40% of the maximum penalty, before applying a 25% discount for the early guilty plea. The defendant's status as a small business with six employees was accepted as a relevant factor in calibrating the penalty.

Orders Made

  • The defendant was convicted of the offence.
  • A fine of $600,000 was reduced by 25% for the early guilty plea, resulting in a fine of $450,000.
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A PCBU's duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) extends to ensuring workers are not exposed to foreseeable risks of death or serious injury, including shear point hazards created by the design and operation of plant such as construction hoists.
  • Where a director's affidavit attributes a safety breach primarily to an employee's failure to follow existing systems, a sentencing court may decline to treat that as a genuine acceptance of responsibility, with consequences for any discount on grounds of remorse.
  • The District Court confirmed that general deterrence is a weighty consideration in WHS sentencing, and that fines must reflect the seriousness of the risk created, not merely the harm that resulted.
  • Post-incident remediation, including engineering controls, is a relevant mitigating factor going to prospects of rehabilitation under section 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where it does not reduce the objective seriousness of the offence.
  • Company size is a recognised consideration in calibrating WHS penalties, with smaller organisations treated differently from large corporations, though this does not displace the need for an effective punitive and deterrent outcome.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(h)
- Fines Act 1996 (NSW), s 122(2)

Cases:
- Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1
- Bulga Underground Operations 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
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384