Citation: SafeWork NSW v Thompson [2021] NSWDC 689
Court: District Court of New South Wales
Date: 17 December 2021
Judge: Russell SC DCJ
Background
On 6 November 2018, a worker employed by a subcontractor was working on a scaffolding deck at a construction site in Guildford, NSW. A 4.7-metre reinforcing bar (reo bar) protruding from the scaffold deck made contact with high-voltage power lines (11kV) running along the street frontage. The worker was electrocuted and suffered catastrophic injuries, including the surgical amputation of both arms below the elbow and significant burns.
The principal contractor on the site was Construct By Design Residential Pty Ltd (CBD), which was building a multi-storey assisted living apartment complex. The defendant, Stephen Craig Thompson, was the General Manager, Project Manager and, in effect, the controlling director of CBD. He had financial oversight of the business and was responsible for significant decisions across its construction projects.
SafeWork NSW prosecuted Thompson as an officer of CBD under the Work Health and Safety Act 2011 (NSW). The prosecution alleged he failed to exercise due diligence to ensure CBD complied with its primary health and safety duty, thereby exposing the worker to a risk of death or serious injury. Thompson pleaded guilty.
Legal Issues
- Whether Thompson, as an officer of CBD, had failed to exercise "due diligence" under s 27(1) of the Work Health and Safety Act 2011 (NSW) to ensure CBD complied with its duty under s 19(1) of that Act.
- What the appropriate sentence was, taking into account objective seriousness, mitigating factors (including the early guilty plea), general and specific deterrence, capacity to pay, and parity with a related co-defendant.
- Whether prosecution costs should be awarded.
Decision
Thompson pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011 (NSW), which provides the offence for failing to comply with an officer's duty under s 27(1). The risk identified was that workers could suffer serious injury or death from electric shock while working on a scaffold in unsafe proximity to live overhead high-voltage power lines.
The court found that CBD had been warned about the power line hazard well before the incident. The scaffolding company's director had raised the concern as early as April 2018, and Endeavour Energy had advised that the power lines needed to be isolated and that plywood hoarding would be required. Thompson was informed of these requirements. Despite this, there were no formal processes at CBD for assessing and managing the electrical hazard, no electrical hazard warning signs were erected, and the plywood hoarding installed was not an impenetrable barrier to protruding materials. The high-voltage power lines remained visible from the scaffold deck.
The court assessed the objective seriousness of the offence and took into account Thompson's early guilty plea, mitigating factors, and his capacity to pay a fine. The maximum penalty applicable to an officer in this category of offence was $300,000. Taking all relevant matters into account, the court assessed the appropriate fine at $40,000, then reduced it by 25 percent to reflect the early plea of guilty.
The court also considered the victim impact statement provided by the injured worker, which described in profound terms the permanent physical disability, loss of independence, depression, and social isolation resulting from his injuries. The court took this statement into account in determining the sentence.
Orders Made
- Thompson convicted on 15 December 2021.
- Thompson ordered to pay a fine of $30,000 (assessed at $40,000, reduced by 25% for early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Thompson ordered to pay the prosecutor's costs.
Key Takeaways
- An officer of a company conducting a business or undertaking can be personally convicted under s 27(1) of the Work Health and Safety Act 2011 (NSW) for failing to exercise due diligence, even where the company itself has not been separately convicted.
- "Due diligence" under the Act requires officers to take reasonable steps to ensure the business has, and actually uses, appropriate processes for identifying, assessing and managing workplace hazards, including verifying that those processes are functioning in practice.
- Prior knowledge of a specific hazard, here the proximity of live high-voltage power lines communicated to the defendant months before the incident, is a significant consideration in assessing the objective seriousness of an officer's failure to act.
- A 25% reduction in the base fine was applied to reflect an early guilty plea, consistent with the sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half of the fine be paid to the prosecuting authority, SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cll 166, 225
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- SafeWork NSW v Simos Scaffolding Pty Ltd [2021] NSWDC 443
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263