Citation: SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443
Court: District Court of NSW
Date: 27 August 2021
Judge: Russell SC DCJ
Background
The defendant, a scaffolding company, was engaged by a principal contractor to erect perimeter scaffolding at a multi-storey residential construction site in Guildford, NSW. The site was on a corner block adjacent to both low and high-voltage overhead power lines. The electrical supply authority had issued a letter of conditions specifying the requirements for working near its infrastructure, including the need for an impenetrable plywood hoarding and warning signs.
A worker employed by a separate subcontractor was on the scaffold deck when a 4.7-metre reinforcement bar (reo bar) protruding from the deck made contact with the 11kW high-voltage power lines. The worker suffered catastrophic injuries: both arms were amputated below the elbow and he sustained significant burns. He survived, but faces permanent serious disability.
The scaffolding company pleaded guilty to a charge that, as a person conducting a business or undertaking with a duty under s 19 of the Work Health and Safety Act 2011 (NSW), it failed to comply with that duty and thereby exposed the worker to a risk of death or serious injury, contrary to s 32 of that Act.
Legal Issues
- What was the objective seriousness of the offence, including the nature of the risk and the adequacy (or inadequacy) of the safety measures in place?
- What weight should be given to mitigating factors, including the early guilty plea, the absence of prior convictions, and evidence of remorse?
- What penalty was appropriate, particularly given the company's reduced financial capacity to pay?
- How should prosecution costs be dealt with?
Decision
The court assessed the objective seriousness of the offence as high. The high-voltage power lines were clearly visible from the scaffold deck, yet no adequate impenetrable barrier had been erected, no electrical hazard warning signs had been fixed to the hoarding, and no written risk assessment had been conducted. The electrical supply authority's letter of conditions, which set out these requirements explicitly, had not been complied with.
The court identified several mitigating factors: the early guilty plea (attracting a 25% discount), the absence of prior convictions, co-operation with investigators, remorse, and measures taken since the incident to improve safety practices. No aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found applicable.
Guided by the Court of Criminal Appeal's decision in Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, the sentencing judge determined that, absent any issue of capacity to pay, a fine of $400,000 (reflecting high objective seriousness comparable to a fatality case) would be the appropriate starting point, yielding $300,000 after the 25% guilty plea discount. However, the court accepted that the defendant was a small business, that a large fine would likely cripple its operations, and that the sole director supported a family of six. The fine was moderated on capacity-to-pay grounds to a starting point of $200,000, further reduced by 25% to $150,000.
Orders Made
- Simos Scaffolding Pty Ltd convicted on 24 August 2021.
- Simos Scaffolding Pty Ltd ordered to pay a fine of $150,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Simos Scaffolding Pty Ltd ordered to pay the prosecutor's agreed costs of $40,000.
Key Takeaways
- The District Court treated the failure to erect an impenetrable barrier, failure to display electrical hazard warning signs, and failure to conduct a written risk assessment near live high-voltage power lines as collectively placing the offence in the high range of objective seriousness under the WHS Act.
- Under the sentencing framework applied, a high-range WHS offence involving catastrophic (though not fatal) injuries was treated as broadly comparable in objective gravity to a fatality, with the Court drawing on the Jamestrong benchmark of a $400,000 starting point.
- A 25% discount for an early guilty plea applied consistently with established sentencing practice, reducing the notional fine before capacity-to-pay considerations.
- Where a defendant demonstrates genuine reduced capacity to pay, the sentencing court may moderate a fine below the level that would otherwise be imposed, provided the penalty still serves the goals of general and specific deterrence.
- Compliance with an electrical supply authority's written conditions for scaffolding near power lines (including barrier specifications, warning signage, and risk assessments) formed part of the court's assessment of what was reasonably practicable under s 19 of the WHS Act.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cl 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- 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
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432