Citation: SafeWork NSW v Anthony Hanna; and SafeWork NSW v Milia Hanna [2021] NSWDC 708
Court: District Court of New South Wales
Date: 21 December 2021
Judge: Strathdee DCJ
Background
The defendants were an owner builder (Milia Hanna) and her husband (Anthony Hanna), who acted as her agent and site supervisor at a residential construction project in Green Valley, NSW. Milia Hanna held an Owner Builder Permit and had engaged various contractors to build a two-storey home. She appointed Anthony Hanna to manage the site on her behalf, including selecting, engaging, and instructing contractors.
On 17 November 2018, three workers from an air conditioning contractor attended the site to carry out further installation work. Neither defendant was present when the workers arrived. No site induction was conducted, no Site Safety Management Plan was provided, and no Safe Work Method Statement was required from the contractor. The workers undertook a walk-through of the partially constructed dwelling.
During that walk-through, one worker, William Finch, fell through or from an unprotected void near the entrance of the dwelling. The void was over three metres high at its first-storey edge and had no barriers, handrails, or guardrails. Mr Finch sustained fatal injuries. Two other workers were also exposed to the same risk of a fall from height.
Legal Issues
- Whether each defendant failed to comply with their respective duties under the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury
- The appropriate sentence, including the objective seriousness of each offence, applicable mitigating and aggravating factors, and the weight to be given to the early guilty pleas
- Whether a non-monetary order under section 238 of the Act (for an educational project) was appropriate in addition to fines
Decision
Both defendants pleaded guilty on 30 August 2021. Milia Hanna was prosecuted under section 19(1) of the Act as a person conducting a business or undertaking, carrying a maximum penalty of $300,000. Anthony Hanna was prosecuted under section 28(b) as a worker, carrying a maximum penalty of $150,000. The Court convicted both defendants.
Strathdee DCJ assessed the objective seriousness of each offence, taking into account that the risk of falls from height at an unprotected construction site was well known, that no meaningful safety measures had been implemented, and that a worker had died as a result. The Court weighed mitigating factors including the early guilty pleas, expressions of remorse, and the defendants' personal and financial circumstances, against the gravity of the harm caused.
Before applying the guilty plea discount, the Court assessed the appropriate fine for Milia Hanna at $200,000 and for Anthony Hanna at $100,000. Each defendant received a 25% reduction reflecting their early pleas. The Court also made an order under section 238 of the Act requiring the defendants to fund the production of an educative animated video for SafeWork NSW, covering topics such as the risks of falls from height and the obligations of owner builders.
Orders Made
- Milia Hanna convicted; fined $150,000 (base fine of $200,000 reduced by 25% for early plea)
- Anthony Hanna convicted; fined $75,000 (base fine of $100,000 reduced by 25% for early plea)
- Both defendants jointly ordered to pay the prosecutor's agreed costs of $65,000
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fines to be paid to the prosecutor
- An order made under section 238 of the Work Health and Safety Act 2011 (NSW) requiring the defendants to fund an educative animated video for SafeWork NSW addressing falls from height and owner builder obligations
Key Takeaways
- An owner builder who holds a permit and engages contractors bears a duty under section 19(1) of the Work Health and Safety Act 2011 as a person conducting a business or undertaking, regardless of whether they are physically present on site when an incident occurs.
- A person appointed to act as an agent and site supervisor for an owner builder carries a worker's duty under section 28(b) of the Act, and can be prosecuted separately from the principal duty holder.
- The absence of site inductions, safety management plans, and edge protection at a partially constructed dwelling was treated as a significant failure, contributing to the Court's assessment of objective seriousness even where defendants were not formally trained builders.
- A 25% discount on fines was applied to reflect guilty pleas entered at an early stage, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Courts retain power under section 238 of the Work Health and Safety Act 2011 to impose non-monetary orders, such as requiring defendants to fund educational safety materials, alongside financial penalties.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 28(b), 32, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- Home Building Act 1989 (NSW)
Cases
- 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
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Thomson & Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398