Citation: SafeWork NSW v P&K Bezzina Pty Limited; SafeWork NSW v Paul Martin Bezzina [2020] NSWDC 91
Court: District Court of New South Wales
Date: 9 April 2020
Judge: Russell SC DCJ
Background
A subcontracted bricklayer, Mr Lovepreet Singh, was engaged at a residential construction site in Kellyville, NSW, where P&K Bezzina Pty Limited acted as the principal contractor. Sandhu Construction Group Pty Ltd had been subcontracted to provide bricklaying services and, in turn, engaged Mr Singh as one of its own subcontractors. Both the principal contractor and Sandhu directed and supervised Mr Singh's work.
On 16 May 2017, a partially-constructed masonry brick wall approximately two metres high collapsed onto Mr Singh during windy conditions. The wall had never been fitted with temporary bracing or timber framing, no exclusion zone had been established around it, and no risk assessment had been conducted for the wall-construction task. Mr Singh suffered a severe traumatic brain injury, multiple facial and cranial fractures, permanent damage to his right eye, and a fractured left forearm. He was admitted to intensive care for fifteen days before being transferred to a brain injury unit.
P&K Bezzina Pty Limited and its director, Mr Paul Martin Bezzina, each pleaded guilty to separate offences under the Work Health and Safety Act 2011 (NSW). The company was charged as a person conducting a business or undertaking (PCBU) that had failed to comply with its health and safety duty under s 19, thereby exposing Mr Singh to a risk of death or serious injury. Mr Bezzina was charged as an officer of the company who failed to exercise due diligence to ensure the company met that duty.
Legal Issues
- What was the objective seriousness of each offence, having regard to the nature and extent of the risk and the measures that were not taken?
- What mitigating and aggravating factors applied to each offender?
- What discount, if any, was appropriate for the guilty pleas?
- What financial penalty was appropriate for the company and for its director, relative to each offender's maximum penalty?
- How should prosecution costs be ordered?
Decision
The court assessed objective seriousness by reference to the absence of any risk assessment, the complete failure to install temporary bracing or establish an exclusion zone, the lack of a WHS Management Plan, and the absence of any safe work procedures for wall construction. There was no written contract between P&K Bezzina and Sandhu, and no mechanism for consulting on work health and safety matters. These omissions were treated as systematic rather than inadvertent, placing the offences at a moderate level of seriousness.
In mitigation, the court accepted guilty pleas, the absence of prior WHS convictions, the ongoing personal and financial consequences the incident had caused the Bezzina family's business, and evidence of subsequent remedial steps. The fact that a real person suffered very grave and permanent injuries, including brain damage and loss of vision in one eye, was treated as a significant consideration in assessing the overall gravity of the conduct. General deterrence was emphasised as particularly important in the construction industry.
The court arrived at a base fine of $120,000 for P&K Bezzina (against a maximum of $1,500,000) and $20,000 for Mr Bezzina personally (against a maximum of $300,000). Each figure was then reduced by 25 per cent to reflect the guilty pleas, resulting in fines of $90,000 and $15,000 respectively.
Both offenders were also ordered to pay the prosecutor's costs, and in each case fifty per cent of the fine was directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
Orders Made
P&K Bezzina Pty Limited:
- Convicted of the offence
- Fined $90,000 (base fine of $120,000 reduced by 25% for guilty plea)
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996
- Ordered to pay the prosecutor's costs
Paul Martin Bezzina:
- Convicted of the offence
- Fined $15,000 (base fine of $20,000 reduced by 25% for guilty plea)
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996
- Ordered to pay the prosecutor's costs
Key Takeaways
- A PCBU's failure to conduct any risk assessment, install temporary bracing, establish exclusion zones, or develop a WHS Management Plan for an inherently hazardous construction task was treated as a significant indicator of objective seriousness, even at fine levels well below the statutory maximum.
- Under the Work Health and Safety Act 2011 (NSW), officers of a PCBU carry a personal duty of due diligence under s 27; a conviction and personal fine can follow where an officer's failure to ensure compliance exposes workers to risk of death or serious injury.
- The District Court confirmed that a guilty plea warranted a 25% discount on the base fine for both the corporate and individual offenders, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- General deterrence in the construction industry carried significant weight in the sentencing exercise, reflecting the serious and lasting harm caused to a vulnerable subcontracted worker who was directed by multiple parties in the chain.
- The absence of formal written arrangements between the principal contractor and its bricklaying subcontractor, including no written contract and no consultation mechanism on WHS matters, was treated as a concrete indicator of the systemic inadequacy of the safety regime at the worksite.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 8, 19, 27, 32, 46
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 54, 55, 309
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited 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
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432