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District Court 3 April 2020

R v Sapform Pty Ltd

[2020] NSWDC 86

Other
CRIMINAL LAW PROSECUTION WORK, HEALTH AND SAFETY DUTY OF PERSON UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY AGGRAVATING AND MITIGATING FACTORS

Citation: R v Sapform Pty Ltd [2020] NSWDC 86
Court: District Court of New South Wales
Date: 3 April 2020
Judge: Strathdee DCJ

Background

The defendant, a corporate formwork contractor, was engaged to complete formwork for a six-storey residential unit block in Ryde, NSW. A subcontracted carpenter with ten years of experience was fatally injured on 25 October 2016 when he fell more than three metres from a Level 2 deck and was impaled on a metal starter bar protruding from the concrete slab below.

The Level 2 deck had significant gaps between its edge and the perimeter scaffold, uncovered penetrations, and missing joist timbers. The work was not being carried out in accordance with the accepted industry standard safe work sequence, and the deceased worker was working without direct supervision at the time of the fall.

The defendant pleaded guilty on 14 October 2019 to a Category 2 offence under the Work Health and Safety Act 2011 (NSW): failing, as a person conducting a business or undertaking, to ensure so far as reasonably practicable the health and safety of workers, thereby exposing them to a risk of death or serious injury. The maximum penalty for this offence is $1,500,000.

  • What was the appropriate starting point for the fine, having regard to the objective seriousness of the offence, the foreseeability of the risk, and the measures available to address it?
  • What weight should be given to mitigating factors, including the plea of guilty, the defendant's remorse, and post-incident remediation?
  • What weight should be given to the defendant's claimed financial hardship, including ATO liabilities and the impact of COVID-19?
  • What discount applied to the fine to reflect the utilty of the plea of guilty?

Decision

The court found the offence was objectively serious. The risk of a worker falling from an elevated deck was foreseeable and well known in the construction industry, and there was an abundance of readily available guidance material on managing falls from height. The defendant's Safe Work Method Statement failed to identify the risk of falling while laying formwork and did not specify a compliant work sequence. No documented risk assessments were undertaken at any stage of the works.

The court identified several specific failings: the formwork was not being laid in the industry-standard sequence; significant gaps existed between the deck edge and the scaffold; penetrations were left uncovered; and the deceased worker lacked adequate supervision. The court noted that while KNT, as principal contractor, bore its own WHS responsibilities, those obligations did not diminish the defendant's independent duty.

On mitigating factors, the court accepted the plea of guilty, cooperation with investigators, and expressions of remorse. However, it was unpersuaded by submissions relating to financial hardship. The court rejected the characterisation of a 23-employee business as a "small family company" and declined to treat the ATO liability as a basis for reducing the penalty, noting that the director appeared to deflect responsibility for that situation onto a former accountant. The COVID-19 economic climate also did not attract a discount.

The court assessed an appropriate base fine of $600,000 and applied a 25% reduction for the utility of the guilty plea, arriving at a final penalty of $450,000.

Orders Made

  • The defendant is convicted.
  • A fine of $450,000 is imposed (reduced by 25% from a base of $600,000 to reflect the guilty plea).
  • 50% of the fine is to be paid to the prosecutor.
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A corporate formwork contractor that failed to implement an industry-standard work sequence, provide adequate fall protection, and supervise workers on an elevated deck was held to have committed a serious Category 2 WHS offence, resulting in a $450,000 fine.
  • Under the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking bears an independent duty to workers that is not discharged simply because a principal contractor also has obligations at the same site.
  • A Safe Work Method Statement that fails to identify a specific foreseeable risk, such as falling from height while laying formwork, will not satisfy a defendant's obligations, even where the document nominally addresses fall risks in other contexts.
  • Claimed financial hardship, including outstanding ATO liabilities and general economic disruption from COVID-19, did not reduce the penalty where the court was not persuaded those circumstances justified leniency.
  • A 25% discount for a guilty plea was applied at the sentencing stage, consistent with the approach in comparable decisions including Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 and the principles discussed in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cll 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Occupational Health and Safety Act 2000 (NSW)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239
- Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685