Citation: SafeWork NSW v Form Group NSW Pty Ltd [2022] NSWDC 176
Court: District Court of New South Wales
Date: 25 May 2022
Judge: Scotting DCJ
Background
The offender, a concrete formwork subcontractor, was engaged by a principal contractor to supply, install and dismantle formwork at a mixed-use construction site in Campsie, NSW. The offender in turn engaged a labour hire company to carry out stripping and clearing work on site. On 16 January 2019, one of those labour hire workers fell approximately 4.5 metres through an uncovered ventilation shaft penetration in the ground floor of a building, landing on a concrete slab below.
The penetration had previously been adequately secured and marked. However, on the day before the incident, it was uncovered to allow a concrete pump line to pass through it and was not properly replaced. An inspection that afternoon failed to identify or record the hazard. The following morning, workers were directed to strip formwork and stack materials on that same floor without any pre-start inspection of the penetration being carried out. The worker picked up a loose piece of plywood that happened to be covering the opening, not realising what lay beneath.
The worker sustained multiple serious pelvic and lumbar fractures, underwent surgery, and was hospitalised for nearly two months before returning to his home country of Malaysia. SafeWork NSW prosecuted the offender under the Work Health and Safety Act 2011 for failing to comply with its primary health and safety duty, thereby exposing the worker to a risk of death or serious injury.
Legal Issues
- Whether the offender contravened its primary duty of care under s 19(1) of the Work Health and Safety Act 2011 by exposing a worker to a risk of death or serious injury
- The appropriate penalty, having regard to the objective seriousness of the offence, general and specific deterrence, aggravating and mitigating factors, the offender's capacity to pay, and the effect of a guilty plea
Decision
The offender pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011, which carries a maximum fine of $1.5 million for a corporation. The key sentencing task before Scotting DCJ was to fix the appropriate penalty by weighing the objective seriousness of the offence against mitigating factors and the offender's financial position.
On objective seriousness, the court found the offence fell in the low-to-mid range. The risk of falling through an unsecured penetration was well known in the construction industry and straightforward to address. The offender's Safe Work Method Statement failed to address penetration-related risks adequately, and its site supervisor did not inspect the floor for hazards before directing workers to begin stripping activities. The injuries suffered were serious, though the court noted the offence must be assessed on the risk created rather than the outcome alone.
The court identified significant mitigating factors, including the guilty plea, the absence of prior convictions, remorse, cooperation with investigators, and positive steps taken to improve safety practices after the incident. These factors supported a meaningful reduction in penalty. The offender also tendered evidence of limited financial capacity, including projected losses for the 2022 financial year and substantial bad debts. The court accepted the offender's capacity to pay was limited, though it noted the business still had a projected annual turnover of approximately $33 million and an expected gross profit exceeding $2 million. The court found the reduction warranted by financial capacity was relatively modest given the seriousness of the offence and the need for general deterrence.
The court applied a 25% discount to the fine in recognition of the guilty plea, consistent with the principles in R v Thomson and Houlton and the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- Form Group NSW Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $75,000 imposed (reflecting a pre-discount figure of $100,000, reduced by 25% for the guilty plea)
- Offender ordered to pay the prosecutor's agreed costs of $43,000
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor
Key Takeaways
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A formwork subcontractor's failure to ensure its Safe Work Method Statement addressed penetration risks, combined with a site supervisor's failure to inspect for hazards before directing workers onto a floor, was sufficient to establish a breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011.
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The District Court assessed the offence as falling in the low-to-mid range of objective seriousness, on the basis that the risk was well known, the precautions required were straightforward, and no system was in place to confirm penetrations were covered before work began.
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Where a corporate offender demonstrates limited financial capacity, the sentencing court may reduce the fine, but only modestly where the overall seriousness of the offence and the public interest in general deterrence warrant a substantial penalty.
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A 25% guilty plea discount applied, consistent with established NSW sentencing principles, reducing the fine from $100,000 to $75,000.
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Post-incident remediation, cooperation with investigators, absence of prior convictions, and demonstrated remorse were all recognised as mitigating factors, though they did not displace the need for a penalty reflecting the gravity of a workplace injury involving multiple serious fractures.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383