Citation: SafeWork NSW v Akkari Group Pty Ltd [2022] NSWDC 196
Court: District Court of New South Wales
Date: 7 June 2022
Judge: Strathdee DCJ
Background
The defendant was the principal contractor responsible for developing a multilevel, mixed-use apartment building at a site in Gosford, NSW. As principal contractor, it held management and control of the site and bore responsibility for worker safety. It had engaged several subcontractors to carry out excavation, piling, and concrete work.
In mid-May 2018, an unsupported excavated wall along the southern boundary of the site measured between 1.5 and 3.4 metres high. Following a partial collapse of that wall on or around 15 to 18 May 2018, the defendant's structural engineer visited the site, identified the ongoing risk, and provided specific temporary shoring recommendations. The defendant did not implement those recommendations in full.
On 23 May 2018, a piling worker was crouching near the southwestern corner of the site when the excavated wall collapsed on him. He sustained a dislocated femur, hip fractures, and leg abrasions, required multiple surgeries, and did not return to work until approximately December 2018.
Legal Issues
- Whether the defendant failed to comply with its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers, contrary to s 32 of that Act.
- The appropriate sentence, having regard to the objective seriousness of the offence, applicable aggravating and mitigating factors, the utilitarian value of a guilty plea, and the purposes of general and specific deterrence.
Decision
The defendant pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW). The plea constituted an admission that it had failed to comply with its duty under s 19(1) to ensure, so far as reasonably practicable, the health and safety of workers at the site.
The court assessed the objective seriousness of the offence as substantial. The defendant had been on notice of the risk: a partial wall collapse had already occurred, and its own structural engineer had attended the site, identified the ongoing hazard, and issued written recommendations. The defendant failed to implement those recommendations, conducted no proper risk assessment, and provided no adequate temporary shoring. The site foreman also attempted to persuade workers to provide a false account of the incident to SafeWork NSW, which the court treated as an aggravating factor.
In mitigation, the court accepted the defendant's remorse as expressed by affidavit, the significant changes made to its systems of work since the incident, and its reasonable prospects of rehabilitation. The court allowed a 25% discount on the fine for the utilitarian value of the guilty plea, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. The plea was entered approximately twelve months after the summons was filed, after nine court mentions, but the court took into account related proceedings and the withdrawal of a charge against a co-defendant.
The court determined a base fine of $400,000 and reduced it by 25% to $300,000. It emphasised that the seriousness of the offence required a significant penalty to achieve general deterrence, and that a substantially reduced fine would not convey the necessary message that principal contractors must take their obligations to protect workers from the risk of serious injury with the utmost seriousness.
Orders Made
- The defendant is convicted.
- A fine of $300,000 is imposed (reduced from a base of $400,000 by a 25% guilty plea discount).
- 50% of the fine is to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW).
- The defendant is to pay the prosecutor's costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A principal contractor's duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) extends to workers engaged by subcontractors operating on the site, not only its direct employees.
- Where a defendant had received expert written advice identifying a specific hazard and recommending particular controls, its failure to implement those controls was treated as a significant factor elevating the objective seriousness of the offence.
- Attempts by a manager to persuade workers to provide a false account of a workplace incident to the regulator constituted an aggravating factor in sentencing.
- A guilty plea entered approximately twelve months after the filing of a summons, and after nine court mentions, attracted a 25% discount for utilitarian value rather than the maximum available, reflecting the timing of the plea.
- The District Court affirmed that general deterrence carries particular weight in work health and safety sentencing: the penalty must be sufficient to signal to employers that obligations to protect workers from death or serious injury require active and meaningful compliance.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cll 305(2)(b), Part 3.1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 133(2)
- SafeWork NSW Code of Practice for Excavation Work, July 2005
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Poletti Corporation [2019] NSWDC 491
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464