Citation: SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86
Court: District Court of New South Wales
Date: 25 March 2021
Judge: Strathdee DCJ
Background
The defendant was a company providing construction repair services to the insurance industry. In July 2017, it was engaged to carry out repair work at a split-level residential property at St Ives, and it in turn engaged a waterproofing subcontractor, Macfin Building Solutions, to perform roof waterproofing. Several workers were present on site across three days, including waterproofers and labourers engaged through a chain of subcontracting arrangements.
On 26 July 2017, a worker fell through a void on the flat roof. The void measured 1.6 by 2.9 metres and was covered only with green shade cloth and wire mesh, which provided no adequate protection. The worker fell approximately two metres onto a rock garden below, where his face became submerged in a shallow water feature. He sustained catastrophic injuries, including intracranial injuries, skull, spine and facial fractures, a collapsed lung and abdominal bleeding, and subsequently died.
The defendant pleaded guilty on 12 October 2020 to an offence under section 32 of the Work Health and Safety Act 2011 (NSW), admitting that it had failed to comply with its primary duty of care under section 19(1) of that Act, thereby exposing workers to a risk of death or serious injury. The maximum penalty for this offence is $1,500,000.
Legal Issues
- What was the objective seriousness of the offence, and where did it sit on the scale of criminality relative to the statutory maximum?
- What weight should be given to general and specific deterrence in the sentencing exercise?
- How did the defendant's culpability compare with that of its co-offender, Macfin (already sentenced), for parity purposes?
- What mitigating factors applied, and what discount was available for the early guilty plea?
Decision
Objective Seriousness
The court found the risk posed by the unprotected void was obvious and foreseeable, and that reasonably practicable measures to eliminate or control it were available but not implemented (at [85]). The defendant had prepared only a generic safe work method statement that did not identify risks from unprotected voids or edges on the roof (at [29]). No site-specific SWMS existed, no workers were inducted onto this site, and none received any information about the risks of working near voids or penetrations (at [50]). The defendant had also impermissibly relied on subcontractors to discharge its health and safety duties, which the court described as a clear breach of the legislation since that duty cannot be delegated (at [36]). Taking all of these matters together, the court assessed the offence as objectively serious and within the mid-range of offending (at [86]).
Deterrence
General deterrence was afforded significant weight. The court observed that falls from height remain a major cause of death and serious injury in the construction and related industries, and that despite a substantial body of case law addressing the issue, the message did not appear to be reaching the industry (at [83], [91]). The court accepted, however, that the context here was domestic repair work for insurers rather than new building construction, which was a relevant distinction when calibrating the general deterrence component (at [93]).
Specific deterrence was treated as a minimal consideration. Following the incident, the defendant took strenuous and wide-reaching safety initiatives (at [95]). The defendant's insurer clients had withdrawn work, the company was expected to cease trading after payment of any penalty, and the risk of reoffending was assessed as minimal (at [96]-[97]).
Parity with Co-Offender Macfin
The court found the defendant's culpability to be less than that of Macfin. Macfin had arranged for the deceased worker to attend the site, and Macfin had failed to require use of the safety harnesses that the defendant had actually supplied. The defendant had no involvement in or influence over those arrangements (at [99]).
Mitigating Factors and Guilty Plea
The court accepted a range of mitigating factors: no prior convictions despite approximately 1,000 jobs per year since 2010 (at [102]); co-operation with the SafeWork NSW investigation (at [103]); good character as demonstrated through the evidence of the managing director (at [104]); and genuine and significant remorse (at [105]). An early guilty plea attracted a 25% discount on the fine (at [106]-[107]).
Orders Made
- The defendant is convicted.
- A base fine of $125,000 was determined as appropriate, reduced by 25% for the early guilty plea to a fine of $93,750.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's agreed costs of $32,000.
Key Takeaways
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A primary duty holder under section 19(1) of the Work Health and Safety Act 2011 cannot delegate its health and safety obligations to a subcontractor. Relying on a subcontractor's skill and experience to provide safety instructions and supervision constitutes a clear breach of the legislation (at [36]).
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Where a void or penetration in a roof has been physically identified during a pre-commencement inspection but is assessed as low risk without adequate protective measures being put in place, the court will treat the risk as both obvious and foreseeable for the purposes of assessing objective seriousness (at [85]).
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General deterrence carries substantial weight in WHS sentencing for falls from height, given the frequency and severity of such incidents across the construction and related industries. The District Court noted that despite extensive case law, the industry had not adequately absorbed the message (at [83], [91]).
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The context in which work is performed, specifically domestic repair as distinct from new building construction, is a relevant consideration when calibrating the general deterrence component of a sentence, even though it does not diminish the statutory duty itself (at [93]).
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Parity between co-offenders in WHS proceedings requires the sentencing court to identify differences in culpability with precision. Here, the court reduced culpability relative to the co-offender because the co-offender had organised the attendance of the deceased worker and had failed to enforce use of the safety harnesses that the defendant supplied (at [99]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
- Work Health and Safety Act 2011 (NSW)
- Work Health and Safety Regulation 2017 (NSW)
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Orbit Drilling v The Queen [2012] VSCA 82
- Postiglione (1997) 189 CLR 295: [1997] HCA 26
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700