Citation: SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454
Court: District Court of New South Wales
Date: 7 October 2022
Judge: Russell SC DCJ
Background
The defendant, Technical Works Pty Ltd, was the principal contractor managing a construction project for a three-storey hotel development in Kiama, NSW. It engaged a subcontractor to supply and operate a tower crane at the site, and a separate firm to supply formwork materials. On 15 May 2019, a pack of formwork timbers fell from the tower crane onto a public road and adjacent pedestrian footpath. The timbers struck the ground and ricocheted into a delivery driver employed by the formwork supplier, causing him serious injury.
The site was in an area of relatively heavy pedestrian traffic between Kiama train station and the town centre. The work zone at the front of the site was used as a landing area for crane loads and was only partially barricaded. Critically, the barriers had not been filled with water, and no adequate exclusion zone, lift plan, or traffic control measures were in place.
Technical Works pleaded guilty to two separate offences under the Work Health and Safety Act 2011 (NSW): one relating to its duty to workers (specifically the injured delivery driver), and one relating to its duty to members of the public using the adjacent footpath.
Legal Issues
- Whether Technical Works failed to comply with its duty as a person conducting a business or undertaking (PCBU) under s 19(1) of the WHS Act, by exposing the delivery driver to a risk of death or serious injury contrary to s 32 of the Act
- Whether Technical Works failed to comply with its duty to other persons under s 19(2) of the WHS Act contrary to s 33 of the Act, by exposing pedestrians on the adjacent footpath to a risk of death or serious injury
- What fines were appropriate having regard to objective seriousness, mitigating and aggravating factors, and the principle of totality
Decision
The court accepted the guilty pleas and convicted Technical Works on both counts. On the s 19(1) offence, the maximum penalty was $1,500,000; on the s 19(2) offence, the maximum was $500,000. The court assessed the objective seriousness of each offence and identified several failures: no adequate exclusion zone was maintained or enforced, no lift plan for tower crane operations had been developed or implemented, workers (including the delivery driver) were not given information about exclusion zones or crane activity, and no warning signs or traffic control measures were in place to protect pedestrians.
The court treated the s 19(1) offence as more serious than the s 19(2) offence, given that the delivery driver suffered significant actual injuries. The s 19(2) offence, while a genuine and foreseeable risk to the public, did not result in injury, as no member of the public happened to be in the path of the falling timber at the time.
Applying the principle of totality, the court set a base fine of $200,000 for the s 19(1) offence and $60,000 for the s 19(2) offence, then reduced the s 19(2) fine to $20,000 to ensure the combined penalties reflected the overall criminality without being disproportionate. Both fines were then reduced by 25% to reflect the early guilty pleas.
Orders Made
Proceedings 2021/134964 (s 19(1) offence, duty to workers):
- Technical Works Pty Ltd convicted
- Fine of $150,000 imposed (base fine of $200,000, reduced by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor (SafeWork NSW), pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Technical Works Pty Ltd to pay the prosecutor's costs
Proceedings 2021/134979 (s 19(2) offence, duty to other persons):
- Technical Works Pty Ltd convicted
- Fine of $15,000 imposed (base fine of $20,000, reduced by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Technical Works Pty Ltd to pay the prosecutor's costs
Key Takeaways
- A principal contractor can face separate, concurrent WHS Act charges in relation to the same incident, one arising from the duty to workers and another from the duty to other persons, each carrying its own maximum penalty.
- Where multiple offences arise from the same factual event, the principle of totality requires a court to ensure the combined penalties reflect the overall criminality and are not unjustly cumulative.
- Actual injury to a victim is a relevant factor in assessing the relative seriousness of concurrent charges: the District Court here treated the worker charge as more serious because serious physical harm resulted, while the public charge involved risk without realised injury.
- An early guilty plea attracted a 25% reduction in the base fine, consistent with the sentencing discount provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Failures identified by the court included the absence of an exclusion zone, no lift plan for crane operations, no information or instruction to workers about crane activity, and no warning signs or traffic control for pedestrians, each of which the agreed facts treated as reasonably practicable measures that were not taken.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 33
- Work Health and Safety Regulation 2017, cll 39, 54, 55, 314
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Elgas Ltd [2021] NSWDC 101
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Pearce v The Queen (1998) 194 CLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59