Citation: SafeWork NSW v Askfay Pty Ltd; SafeWork NSW v Anthony Elias Felix Grima [2021] NSWDC 572
Court: District Court of New South Wales
Date: 22 October 2021
Judge: Strathdee DCJ
Background
A construction company and its site supervisor each pleaded guilty to failing to comply with their respective health and safety duties under the Work Health and Safety Act 2011 (NSW), following a workplace incident at a residential townhouse development in Glenmore Park, western Sydney.
The principal contractor, a building company, was engaged to construct six two-storey townhouses. A site supervisor was engaged verbally to oversee workers on part of the development. A subcontractor was retained to erect steel frames, and on the morning of 22 May 2018, one of the subcontractor's employees began work on the first floor of a townhouse before scaffolding or penetration covers had been installed.
At around 7:30 am, the worker stepped backwards and fell approximately three metres through an uncovered stairwell opening onto the concrete floor below. He sustained an acute femur fracture, a finger laceration, and significant hip pain, requiring hospitalisation and six weeks of recovery assistance. SafeWork NSW issued prohibition and improvement notices that same day and two days later, respectively, and the required protections were installed shortly afterwards.
Legal Issues
- Whether each defendant's conduct, as established by the guilty pleas, warranted conviction under s 32 of the Work Health and Safety Act 2011 (NSW).
- The appropriate penalty for the corporate defendant (maximum $1,500,000) and the individual defendant (maximum $300,000), having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, deterrence, and the totality principle.
- The appropriate discount to apply to reflect early guilty pleas entered on 14 December 2020.
Decision
Strathdee DCJ applied the "instinctive synthesis" sentencing approach, identifying all relevant factors and making a global judgment about the appropriate penalty for each defendant, consistent with Markarian v The Queen (2005) 228 CLR 357. The court noted the primary consideration was the objective seriousness of the offences, including the nature of the risk exposed to multiple workers, the foreseeability and preventability of the harm, and the degree of each defendant's control over the worksite.
The court found that the corporate defendant had failed to conduct adequate risk assessments for first-floor framing work, had not ensured scaffolding and penetration covers were in place before workers commenced, and had not taken available steps to confirm the injured worker held a valid general construction induction card or had read the relevant Safe Work Method Statement. The site supervisor, as a person with management or control of the workplace, had the authority to prohibit workers from accessing the first floor until protections were in place and had not exercised that authority.
Both defendants were found to have cooperated with investigators and to have expressed remorse. Their early guilty pleas were accepted as a significant mitigating factor attracting a 25% discount. The court also acknowledged the defendants' legal costs and liability for the prosecutor's costs as part of the overall punishment, particularly given evidence of limited capacity to pay.
On deterrence, the court determined that the fines needed to be sufficient to communicate to employers the seriousness of their obligations to protect workers from the risk of injury, and that a substantial reduction would undermine both general and specific deterrence given the duration of the exposure risk across several days on site.
Orders Made
Askfay Pty Ltd:
- Convicted of the offence.
- Pre-discount fine assessed at $500,000; reduced by 25% to $375,000.
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Defendant to pay the prosecutor's costs as agreed or assessed.
Anthony Elias Felix Grima:
- Convicted of the offence.
- Pre-discount fine assessed at $50,000; reduced by 25% to $37,500.
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Defendant to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under ss 19(1) and 20 of the Work Health and Safety Act 2011 (NSW), the duty to ensure the health and safety of workers is non-delegable, applying equally to a corporate principal contractor and to an individual exercising management or control of a workplace.
- A site supervisor with the authority to refuse workers access to a work area carries a personal duty to exercise that authority where hazards such as uncovered penetrations and absent scaffolding are present or foreseeable.
- The District Court applied the instinctive synthesis approach to sentencing, treating objective seriousness as the primary factor and weighing early guilty pleas, remorse, cooperation, and capacity to pay against the need for general and specific deterrence.
- Prosecutor's costs and the defendants' own legal costs were taken into account as components of the overall financial burden when assessing the adequacy of the monetary penalty, particularly where capacity to pay was limited.
- A pre-discount fine representing one-third of the corporate maximum ($500,000 of $1,500,000) and one-sixth of the individual maximum ($50,000 of $300,000) reflected the court's assessment of the offences as serious but not at the highest range, given the circumstances and the mitigating factors present.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 20, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464