Citation: SafeWork NSW v Deicorp Pty Ltd [2022] NSWDC 194
Court: District Court of NSW
Date: 7 June 2022
Judge: Strathdee DCJ
Background
Deicorp Pty Ltd was the principal contractor on a multi-storey residential construction project in Campsie, NSW. It engaged Form Group NSW Pty Ltd as a formwork subcontractor, which in turn engaged Labour Force Group Pty Ltd to supply labourers for stripping and stacking formwork materials.
On 16 January 2019, a 28-year-old labourer working through that subcontracting chain picked up a loose piece of plywood while working on the ground floor of one of the buildings. Unknown to him, the plywood was covering a ventilation shaft penetration measuring approximately 0.5 metres by 1.5 metres. He fell approximately 4.5 metres to the concrete basement floor below, sustaining multiple serious pelvic and lumbar fractures.
SafeWork NSW prosecuted Deicorp under the Work Health and Safety Act 2011 (NSW). At the time of the incident, there were no warning signs around the penetration and no physical barriers preventing access to it. Deicorp entered a guilty plea on 21 June 2021.
Legal Issues
- Whether Deicorp, as a person conducting a business or undertaking, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 to ensure, so far as is reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of its business or undertaking
- What the appropriate penalty was, having regard to the objective seriousness of the offence, mitigating and aggravating factors, general and specific deterrence, remorse, and the utilitarian value of an early guilty plea
- What discount, if any, should apply to the base fine for the early guilty plea
Decision
Deicorp was convicted of the offence under s 32 of the Work Health and Safety Act 2011, which carries a maximum fine of $1,500,000. The charge was that Deicorp's failure to comply with its duty under s 19(1) exposed the labourer to a risk of death or serious injury.
In arriving at an appropriate base fine, the court assessed the objective seriousness of the offence, taking into account that the penetration was unsecured and unmarked, that no warning signs or physical barriers had been put in place, and that the resulting injuries were serious. The court also considered mitigating factors including Deicorp's remorse and contrition, as evidenced through affidavit material from its WHS Manager and site manager, along with its prior compliance history and the steps taken after the incident.
The prosecutor sought a discount of only 10 to 15 per cent for the guilty plea, noting the matter had proceeded over two days with five witnesses and that the scene had been altered before SafeWork investigators arrived. Deicorp conceded a 20 per cent discount was appropriate. The court accepted the 20 per cent figure, finding that Deicorp's WHS Manager had acted appropriately in securing the site after the incident, and that this did not justify departing from the conceded discount for the utilitarian value of the plea.
The court also took into account that Deicorp would be liable to pay the prosecutor's agreed costs of $47,000 as part of the overall punishment, in accordance with the approach in Environmental Protection Authority v Barnes [2006] NSWCCA 246. The base fine was set at $500,000 and reduced by 20 per cent to $400,000.
Orders Made
- Deicorp Pty Ltd convicted of the offence
- Deicorp ordered to pay a fine of $400,000 (reduced from a base fine of $500,000 by 20 per cent for the utilitarian value of the early guilty plea)
- 50 per cent of the fine to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW)
- Deicorp ordered to pay the prosecutor's costs in the agreed sum of $47,000
Key Takeaways
- Under s 19(1) of the Work Health and Safety Act 2011, a principal contractor's duty to ensure health and safety extends to workers engaged through a chain of subcontractors, not just its own direct employees.
- The absence of warning signs and physical barriers around a floor penetration at a construction site was central to the finding that Deicorp exposed a worker to a risk of death or serious injury.
- Demonstrated remorse and contrition, supported by affidavit evidence, was treated as a mitigating factor warranting leniency in the sentencing exercise.
- A guilty plea at an early stage attracted a 20 per cent discount for its utilitarian value, even where the matter ultimately proceeded over two days with multiple witnesses.
- The District Court confirmed that costs payable to the prosecutor and the defendant's own litigation costs are legitimate considerations in determining the overall monetary penalty, particularly where those amounts are substantial relative to the fine imposed.
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), s 21A
- Fines Act 1996 (NSW), ss 6, 133(2)
Cases
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
- Markarian v The Queen (2005) 228 CLR 357
- Alameddine v R [2020] NSWCCA
- BC v R [2020] NSWCCA 329
- Cowling v R [2015] NSWCCA 213
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531