Citation: SafeWork NSW v Mercon Group Pty Ltd [2021] NSWDC 378
Court: District Court of New South Wales
Date: 5 August 2021
Judge: Scotting DCJ
Background
Mercon Group Pty Ltd is a small demolition and excavation company that was engaged as a sub-contractor on a heritage building refurbishment at Balmain in 2017. Its task included removing sections of suspended concrete flooring to create openings for stairways and lifts. The company's original quote included "catch decks" to arrest falling concrete and people, but the principal contractor rejected that method in favour of a propping system using timber joists and bearers spaced at intervals.
On 3 February 2017, three workers were cutting a concrete slab when it collapsed and fell roughly 2.85 metres. Two of the workers fell with it and sustained serious injuries, including fractures to a wrist, foot, and ankle. A third worker was caught by his clothing on protruding metal and was not injured.
Mercon pleaded guilty to one charge under section 32 of the Work Health and Safety Act 2011, namely failing to comply with its primary health and safety duty under section 19(1) and thereby exposing the three workers to a risk of death or serious injury. The maximum penalty for the offence is a fine of $1.5 million.
Legal Issues
- The objective seriousness of the offence, including the nature of the risk and the extent of Mercon's departure from required standards
- Whether the method adopted for the demolition work was adequate, and what the relevant codes of practice required
- The appropriate penalty, having regard to aggravating and mitigating factors including remorse, rehabilitation steps taken, co-operation with investigators, and the utilitarian value of the guilty plea
Decision
Scotting DCJ found the offence was of moderate objective seriousness. The risk of workers falling from height when cutting concrete slabs was foreseeable and the consequences were serious, as demonstrated by the injuries actually suffered. The agreed propping system did not provide a continuous surface to arrest falling persons or debris, and Mercon had not updated its Safe Work Method Statement to address the altered work method or the specific risk of slab collapse.
Critically, the robotic cutting method ultimately used to complete the remaining work after the incident cost less than $3,000 and was widely available. Had it been used from the outset, it would likely have eliminated the risk entirely. This illustrated the relative ease with which the danger could have been addressed.
On the subjective case, the court accepted that Mercon had taken meaningful steps to rehabilitate itself after the incident. These steps included engaging a work health and safety consultant, employing a full-time safety officer, and providing financial assistance to the injured supervisor. The company's pre-incident engagement with WHS requirements was described as cursory, and its post-incident improvements were not perfect, but the court was satisfied the remediation was genuine and driven by real concern for its workers. A 25% discount was applied to reflect the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
Orders Made
- Mercon Group Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011
- Fine of $90,000 imposed (being $120,000 reduced by 25% for the guilty plea)
- Mercon to pay the prosecutor's costs of $42,000
- 50% of the fine to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
Key Takeaways
- The District Court treated the offence as moderately serious where workers performing demolition were exposed to a real and foreseeable risk of death or serious injury from a collapsing concrete slab, with two workers actually sustaining fractures.
- A failure to update a Safe Work Method Statement to reflect a changed work method, and a failure to comply with relevant approved codes of practice on managing falls and demolition risks, were central to the finding of liability.
- Under the WHS sentencing framework, genuine post-incident rehabilitation, including investment in safety systems and demonstrated remorse by company directors, can significantly reduce the final penalty even where objective seriousness is moderate.
- A 25% discount applied for an early guilty plea, consistent with established principles that such a plea carries both utilitarian value and evidential weight as to remorse.
- The availability of a safer alternative method at minimal cost (a robotic cutter for less than $3,000) was a relevant consideration in assessing how readily the risk could have been eliminated, bearing on objective seriousness.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 274
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 22
- Fines Act 1996 (NSW), s 122(2)
- SafeWork NSW, Code of Practice: Managing the Risk of Falls at Workplaces (April 2016)
- SafeWork NSW, Code of Practice: Demolition Work (September 2016)
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