Citation: SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437
Court: District Court of New South Wales
Date: 30 September 2022
Judge: Strathdee DCJ
Background
Empire Contracting Pty Ltd was a specialist contractor providing asbestos removal and disposal services. On 9 January 2020, the company was engaged in removing asbestos from student accommodation buildings at the University of Wollongong, preparatory to demolition.
One of the workers on site that day was Mr Ngeap Thay, a labourer employed by the company for approximately two years. Although a site supervisor had assigned Mr Thay to ground-level containment work, Mr Thay ended up working on a steeply pitched roof alongside another worker. He had no formal qualifications or assessed competency for working at heights, and there was no record of him being inducted onto the site.
At approximately 2:20pm, after completing roof work, Mr Thay unhooked his safety harness at the direction of his co-worker before descending the ladder. He then stepped onto friable asbestos roof sheeting and fell 2.5 metres onto the concrete floor below. Emergency services attended and transported him to Wollongong Hospital, where he died that evening from multiple trauma injuries.
Legal Issues
- Whether the defendant breached its duty as a person conducting a business or undertaking under s 19(1) of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury contrary to s 32 of that Act
- The appropriate penalty, having regard to the objective seriousness of the offence, relevant aggravating and mitigating factors, and the utilitarian value of an early guilty plea
Decision
The defendant pleaded guilty on 18 July 2022 to failing to ensure, so far as was reasonably practicable, the health and safety of workers, in circumstances where a worker died as a result of a fall from height. By entering that plea, the defendant admitted the particulars of the charge.
In sentencing, the court assessed the objective seriousness of the offence. The defendant had documented safe work procedures in place, including an Asbestos Removal Control Plan, Safe Work Method Statements, and a Daily Working at Heights Permit. Despite these systems, there were significant failures: Mr Thay lacked assessed competency for working at heights, there was no record of him being site-inducted, and supervision on the day was inadequate to prevent an unqualified worker from accessing the roof. The court found the risk of a fatal fall from this steeply pitched roof was foreseeable and that reasonably practicable measures existed to address it.
In mitigation, the court accepted that the defendant cooperated fully with the SafeWork NSW investigation, took immediate and genuine steps to overhaul its safety procedures following the incident, and provided support to Mr Thay's family and affected workers. The court was satisfied the defendant demonstrated genuine remorse and contrition, held good prospects of rehabilitation, and was unlikely to reoffend, noting no further breaches since the incident. The defendant's early guilty plea attracted the maximum discount of 25 percent in accordance with the principles in R v Thomson and Houlton.
The court set the base fine at $400,000 and reduced it by 25 percent to reflect the early plea, resulting in a final fine of $300,000.
Orders Made
- The defendant is convicted.
- A fine of $400,000 is imposed, reduced by 25% for the early guilty plea, resulting in a fine of $300,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to SafeWork NSW as prosecutor.
- 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 company engaged in specialist hazardous materials work was convicted and fined $300,000 after a worker with no assessed competency for working at heights fatally fell through a fragile asbestos roof, despite the company holding documented safe work procedures.
- Having written safety plans in place does not discharge the duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) where supervision is insufficient to ensure those procedures are actually followed.
- An early guilty plea attracted the maximum 25% utilitarian discount in line with R v Thomson and Houlton, reflecting established NSW sentencing principle.
- Post-incident remediation, genuine remorse, cooperation with investigators, and support for the affected worker's family were all treated as mitigating factors in the sentencing exercise, but did not reduce the seriousness of the underlying offending.
- Under s 122(2) of the Fines Act 1996 (NSW), half of any fine imposed in a WHS prosecution is payable directly to the prosecuting regulator.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), reg 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B
Key Cases:
- R v Thomson and 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
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398