Citation: SafeWork NSW v Dynamic Formwork Group Pty Ltd [2022] NSWDC 11
Court: District Court of New South Wales
Date: 14 February 2022
Judge: Russell SC DCJ
Background
Dynamic Formwork Group Pty Ltd was a formwork and falsework contractor engaged as a subcontractor on a 15-storey residential construction project in Gosford. It was responsible for designing, supplying, and installing formwork at the site, and had further subcontracted a labour hire company, AMS Formwork, to supply the workers who carried out the physical tasks.
On 5 February 2019, an AMS Formwork employee was erecting a deck on the eighth floor of the building. At approximately 3:00 pm, as he moved toward a ladder to descend to the level below, he stepped on a loose timber bearer near the leading edge of the deck and fell 2.8 metres onto the concrete slab on the seventh floor. A vertical steel reinforcing bar (reo bar) protruding from that slab impaled his right leg.
SafeWork NSW prosecuted Dynamic Formwork for failing to comply with its primary duty of care under the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury. Dynamic Formwork pleaded guilty. The proceedings before the District Court concerned the appropriate sentence.
Legal Issues
- What was the objective seriousness of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)?
- What mitigating and aggravating factors were relevant to sentencing?
- What weight should be given to the early guilty plea?
- What penalty was appropriate given the defendant's limited financial capacity?
- What costs orders should be made?
Decision
Objective seriousness: The court assessed the offence as falling in the low-to-mid range of objective seriousness. The risk of falling from height on a multi-storey construction site was foreseeable and well-known. Several reasonably practicable measures had not been taken, including ensuring adequate supervision, verifying that safe stair access remained available and in use, providing or verifying adequate site-specific induction and instruction, and updating the Safe Work Method Statement to prohibit the use of ladders for access between decks. Critically, Dynamic Formwork's site supervisor left the site at 2:40 pm without any replacement, leaving the worker without supervision when the incident occurred at 3:00 pm.
Contributing failures: The court identified a cluster of interrelated failures. The worker had limited English proficiency, of which the director was aware, yet adequate instruction and induction in a language the worker could understand had not been provided. The foreman supervisor also had limited English proficiency. The scaffold stairs at the rear of the building had been in use that morning but were apparently inaccessible or not used at the time of the incident, and no adequate system was in place to verify their continued availability.
Mitigating and aggravating factors: The early guilty plea attracted a 25% reduction in the fine. Mitigating factors included cooperation with the investigation, evidence of remorse, no prior convictions, and the introduction of improved safety systems after the incident. The court also accepted that Dynamic Formwork's financial position was genuinely constrained: the company was operating at a loss, its assets were largely illiquid, and a large fine risked the company's survival. The court moderated the penalty accordingly.
Penalty: Starting from a fine of $60,000 (itself already reflecting the court's assessment of the defendant's financial circumstances against a maximum of $1,500,000), the court applied the 25% guilty plea discount to arrive at a final fine of $45,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor.
Orders Made
- Dynamic Formwork Group Pty Ltd convicted of the offence.
- Dynamic Formwork Group Pty Ltd ordered to pay a fine of $45,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine directed to be paid to the prosecutor.
- Dynamic Formwork Group Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that a subcontractor conducting a business or undertaking retains a primary duty of care under s 19(1) of the Work Health and Safety Act 2011 (NSW) in respect of workers, even where those workers are engaged through a further subcontractor and the principal contractor is separately responsible for the site.
- Failure to maintain adequate supervision, including leaving workers on site without any supervisor in place, constituted a core element of the breach and informed the court's assessment of objective seriousness.
- Where a worker has known limited English proficiency, the absence of adequate site-specific induction and safety instruction in an accessible form is a relevant failure when assessing whether reasonably practicable measures were taken.
- A defendant's genuine financial incapacity can warrant moderation of an otherwise appropriate penalty, provided the financial material is properly placed before the court and is not successfully challenged.
- An early guilty plea attracted a 25% reduction from the base fine, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 78, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Occupational Health and Safety Act 1983 (NSW)
Cases:
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- SafeWork NSW v Ru Gong Li [2018] NSWDC 189
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432