Citation: SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse [2022] NSWDC 290
Court: District Court of New South Wales
Date: 25 July 2022
Judge: Scotting DCJ
Background
A small construction business operating in and around Orange, NSW, and its sole director appeared for sentencing after each pleaded guilty to category 2 offences under the Work Health and Safety Act 2011. The charges arose from a workplace incident on 13 June 2020, in which a 20-year-old carpentry apprentice fell through a fragile skylight while performing roofing work at a client's premises in Molong.
The apprentice was removing roof sheets on top of a shed approximately 6.5 metres above the concrete floor below. While stepping backwards with a sheet, he fell through a Perspex skylight and landed on the floor beneath. He sustained a fractured rib, multiple pelvic fractures, and a fractured wrist.
No fall protection measures were in place at the time. The workers were not wearing harnesses, there was no edge protection or skylight covers, and no safety netting had been installed. Although the company owned harnesses, they were outdated and used only when the director specifically directed workers to wear them.
Legal Issues
- Whether each defendant's conduct reached the threshold for a category 2 offence under s 32 of the Work Health and Safety Act 2011, by exposing workers to a risk of death or serious injury.
- What the appropriate penalty was for the company (which owed a primary duty of care under s 19(1)) and for the director personally (who owed an officer duty under s 27).
- How mitigating factors, including early guilty pleas, remorse, good character, and company size, bore on the final fines.
Decision
Liability
Both defendants pleaded guilty, so the court's task was sentencing rather than determining guilt. The company, PCW Constructions, was sentenced under s 32 for breaching its primary duty as a person conducting a business or undertaking (commonly referred to as a PCBU) under s 19(1). The director, Peter Woodhouse, was sentenced for breaching his duty as an officer under s 27. The maximum fines available were $1,731,500 for the company and $346,500 for the director.
Objective seriousness
Scotting DCJ assessed the offending as being of low to moderate objective seriousness. The risk of falling from heights is well known and extensively documented in guidance material. The failures were systemic: the Safe Work Method Statement did not identify working at height as a risk, the toolbox talk was undocumented and did not address fall protection, no harnesses were directed to be worn, and no skylight covers or edge protection were in place. The workers had not received formal external training in working at heights. The court found the probability of harm occurring was not high in the abstract, but the consequences when harm did occur were potentially very serious.
Mitigating factors
The court identified a substantial range of mitigating factors. Both defendants had no prior convictions, expressed genuine remorse, and entered guilty pleas on the very first return date of the summons, attracting a 25% discount. The director's prompt personal response after the incident, his good standing in the community, and the steps taken to change systems and set aside funds for fines all weighed in favour of a reduced penalty. The court also took into account PCW's modest size and financial circumstances.
Penalty
Before applying the guilty plea discount, the court assessed the appropriate fine for PCW at $120,000 and for the director at $40,000. After the 25% reduction, the final fines were $90,000 for PCW and $30,000 for the director.
Orders Made
- PCW Constructions Pty Ltd convicted and fined $90,000 (reduced from $120,000 by a 25% guilty plea discount).
- Peter James Woodhouse convicted and fined $30,000 (reduced from $40,000 by a 25% guilty plea discount).
- Both defendants ordered to pay the prosecutor's agreed costs of $17,500.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of each fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A category 2 offence under s 32 of the Work Health and Safety Act 2011 captures conduct that exposes workers to a risk of death or serious injury, and both a PCBU and its officer can be prosecuted for the same incident under their respective duties.
- The District Court assessed the offending as low to moderate in objective seriousness, even where injuries were significant, because the probability of the particular harm eventuating was not found to be high, though the potential consequences were serious.
- Systemic failures across multiple layers of a safety system (inadequate SWMS, undocumented toolbox talks, absence of harness direction, and no physical fall prevention) collectively informed the assessment of objective seriousness, even in the absence of any single catastrophic omission.
- An early guilty plea entered on the first return date of the summons attracted the full 25% sentencing discount, consistent with established principles that an early plea demonstrates remorse and utilitarian value.
- Under s 122(2) of the Fines Act 1996, the court directed that 50% of each fine be paid to the prosecuting regulator, SafeWork NSW, a mechanism available in WHS prosecutions that practitioners should be aware exists.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27, 32
- Work Health and Safety Regulation 2017 (NSW), cl 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), (f), (h), (i), (k); s 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412
- R v Borkowski (2009) 195 A Crim R 1