Citation: SafeWork NSW v BlueScope Steel (AIS) Pty Limited [2022] NSWDC 195
Court: District Court of New South Wales
Date: 7 June 2022
Judge: Strathdee DCJ
Background
BlueScope Steel (AIS) Pty Limited operated a large steelworks at Port Kembla, where it ran a Walking Beam Furnace containing a waste duct area classified as a confined space. Within that space sat a void opening in the floor, measuring approximately 14.2 metres by 1.7 metres and sitting around six metres above the furnace floor below. BlueScope engaged a specialist contractor, Dominion Global Pty Ltd, to carry out refractory repair and maintenance work in and around that area.
In October 2018, two Dominion workers had stopped work after concluding the mobile scaffold tower being used near the void posed a fall risk. Despite this, on 12 November 2018 a BlueScope employee and a Dominion supervisor inspected the area and determined the scaffold could serve as a barricade. That evening, BlueScope workers repositioned the scaffold in front of the void and used it as a working platform, then left it in place without dismantling it.
On 13 November 2018, Dominion worker Jack Cullen entered the waste duct area for the first time to help dismantle and remove the scaffold. He walked toward the scaffold and fell through the void, dropping approximately six metres. He sustained serious injuries to his left leg and ankle, required surgery, and had not returned to his pre-injury duties by the time of sentencing.
Legal Issues
- Whether BlueScope failed to comply with its primary duty of care under section 19(1) of the Work Health and Safety Act 2011 (NSW), constituting a Category 2 offence under section 32 of that Act
- The appropriate level of objective seriousness of the offence
- What weight to give mitigating factors, including BlueScope's early guilty plea, cooperation, and post-incident remediation
- What weight to give aggravating factors, including BlueScope's prior convictions under work health and safety legislation
- Whether BlueScope and Dominion, who were separately charged in relation to the same incident, were co-defendants, and how that affected the conduct of proceedings
- The appropriate fine, including the discount for an early plea
Decision
The District Court accepted BlueScope's early guilty plea, entered on 31 January 2022 after an Amended Summons and Agreed Statement of Facts were filed. The court first resolved a procedural question about whether BlueScope and Dominion were co-defendants, finding they were not. Strathdee DCJ was careful to assess BlueScope's culpability separately, noting the prosecutor's combined submissions and shared tender bundle carried a risk of conflation that required vigilance.
On objective seriousness, the court assessed the risk as significant: a large, unguarded void in a confined space, a worker entering that space for the first time with no adequate fall protection in place, and a six-metre fall with serious consequences. The court took into account that Dominion workers had flagged safety concerns about the scaffold's proximity to the void weeks earlier, and that BlueScope's own employees had nonetheless repositioned the scaffold and left it near the edge overnight.
The court accepted that BlueScope's culpability was not equal to Dominion's. As site owner and operator, BlueScope bore overall responsibility for the workplace, but it had engaged Dominion as a specialist contractor, required Dominion to follow established safe systems of work, and Dominion had been inducted into the site. Mitigating factors included the early plea, cooperation with investigators, and remediation steps taken after the incident. However, BlueScope's previous convictions for work health and safety offences, though old, reduced the natural leniency the court would otherwise extend.
The court set the appropriate base fine at $400,000, then applied a 25 per cent discount for the utilitarian value of the early guilty plea, arriving at a final fine of $300,000. The court also noted that BlueScope's liability for the prosecutor's costs formed part of the overall penalty, and took that into account in setting the fine.
Orders Made
- BlueScope Steel (AIS) Pty Limited is convicted of the offence
- A fine of $300,000 is imposed (reflecting a 25 per cent reduction from the base fine of $400,000 for the early guilty plea)
- 50 per cent of the fine is to be paid to the prosecutor pursuant to section 133(2) of the Fines Act 1996 (NSW)
- BlueScope is to pay the prosecutor's costs as agreed or assessed pursuant to section 257B of the Criminal Procedure Act 1986 (NSW)
Key Takeaways
- The District Court confirmed that where two defendants are separately charged in relation to the same workplace incident, they are not co-defendants and must be sentenced separately, with the court taking care not to allow evidence or submissions from one matter to contaminate its assessment of the other.
- A site owner and operator who engages a specialist contractor does not thereby shed its own primary duty under section 19(1) of the Work Health and Safety Act 2011 (NSW); BlueScope remained responsible for the workplace even though Dominion was performing the work.
- Prior work health and safety convictions, even if old, are treated as an aggravating factor at sentencing and diminish the leniency a court would otherwise extend to an otherwise cooperative defendant.
- An early guilty plea attracted a 25 per cent sentencing discount, consistent with the approach under R v Thomson & Houlton (2000) 49 NSWLR 383.
- Costs payable to the prosecutor under the Criminal Procedure Act 1986 (NSW) form part of the overall financial burden imposed on a defendant and are taken into account when the court fixes the level of the fine.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Fines Act 1996 (NSW), ss 6, 133(2)
- Criminal Procedure Act 1986 (NSW), s 257B
- Crimes (Sentencing Procedure) Act 1999 (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
- Green v The Queen [2011] HCA 49
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson & Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Orbit Drilling v The Queen (2012) 35 VR 399