Citation: SafeWork NSW v Dominion Global Pty Ltd [2022] NSWDC 199
Court: District Court of New South Wales
Date: 7 June 2022
Judge: Strathdee DCJ
Background
Dominion Global Pty Ltd operated a refractory installation, repair, and maintenance business. It was engaged by BlueScope Steel to perform works in the Walking Beam Furnace No. 2 area at BlueScope's Port Kembla Steelworks, including in a confined space known as the waste duct area. That area contained an unguarded void in the floor measuring approximately 14.2 metres by 1.7 metres, sitting roughly 6 metres above the furnace below.
A mobile scaffold tower had been erected near the void to assist with the work and used as a barricade. After the prior shift ended, the scaffold was left in place with one corner near the edge of the void. On 13 November 2018, Dominion workers entered the waste duct area to dismantle and remove the scaffold. A worker who had not previously been inside the area walked toward the scaffold and fell through the void, dropping approximately 6 metres. He sustained serious injuries to his left leg and ankle and has not returned to pre-injury duties since.
SafeWork NSW prosecuted Dominion for failing to comply with its primary duty of care under section 19(1) of the Work Health and Safety Act 2011 (NSW), which constituted a category 2 offence under section 32. Dominion entered a guilty plea on 21 November 2021. The prosecution ran concurrently with, but separately from, proceedings against BlueScope arising from the same incident. The court confirmed the two defendants were not co-defendants and were to be dealt with independently.
Legal Issues
- Whether Dominion breached its primary duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) by failing to ensure the health and safety of its workers, specifically by exposing them to a risk of a fall from height into an unguarded void
- What sentence was appropriate, having regard to the objective seriousness of the offence, applicable mitigating and aggravating factors, the defendant's financial position, and the utilitarian value of the early guilty plea
- How the court should assess Dominion's culpability separately from that of BlueScope, given that both matters were heard in close proximity but involved distinct defendants with distinct evidentiary records
Decision
The court convicted Dominion, accepting the guilty plea and treating the section 19(1) breach as established. The failure centred on Dominion's inadequate management of the fall risk created by the void. Relevant regulatory requirements under the Work Health and Safety Regulation 2017 (NSW) required Dominion, as a person conducting a business or undertaking (PCBU), to manage fall risks, conduct documented risk assessments, and maintain appropriate confined space entry controls. Those obligations were not met.
The court assessed the objective seriousness of the offence as significant. The risk of a serious fall was foreseeable and not adequately controlled. Safety concerns about the proximity of the scaffold to the void had actually been raised by Dominion workers weeks before the incident, which made the subsequent failure to implement adequate controls particularly difficult to explain.
On mitigating factors, the court gave weight to Dominion's 44-year history in the industry with no prior convictions, the significant financial impact the incident had already caused (Dominion lost all BlueScope work as a result), and the early guilty plea. The court also took into account both the prosecutor's costs and Dominion's own costs flowing from the breach. The baseline fine was set at $400,000, then reduced by 25 per cent for the utilitarian value of the early plea, producing a final fine of $300,000.
The court was careful throughout to assess Dominion's culpability on its own facts, having accepted the argument that conflating the evidence or submissions relating to BlueScope with those relating to Dominion would have been legally erroneous.
Orders Made
- Dominion Global Pty Ltd is convicted of the offence
- A fine of $300,000 is imposed (reduced from a base of $400,000 by 25% for the early guilty plea)
- 50% of the fine is to be paid to the prosecutor pursuant to section 133(2) of the Fines Act 1996 (NSW)
- Dominion is to pay the prosecutor's agreed costs of $31,362.20
Key Takeaways
- The District Court confirmed that where two defendants face separate charges arising from the same workplace incident, each must be sentenced on its own evidence and submissions, with the court taking active steps to avoid conflating the two matters.
- A documented history of safety concerns raised by workers in the weeks before an incident is a factor that bears on the objective seriousness of a subsequent WHS breach, since the risk was both known and unaddressed.
- Under the Work Health and Safety Act 2011 (NSW), a PCBU's obligations to manage fall risks and confined space entry hazards are not discharged by informal arrangements or the use of a scaffold as an improvised barricade where an unguarded void presents a foreseeable risk of serious injury.
- An early guilty plea attracted a 25% discount on the base fine, consistent with established sentencing principles for utilitarian pleas in WHS prosecutions.
- Financial hardship caused by the consequences of the offence itself (including loss of a major client) is a factor the sentencing court may take into account alongside the defendant's costs and liability for prosecution costs when calibrating a monetary penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Fines Act 1996 (NSW), s 133(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- SafeWork NSW Code of Practice: Confined Spaces (January 2012)
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
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- 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
- SafeWork NSW v Poletti Corporation [2019] NSWDC