Citation: SafeWork NSW v Greater Civil Pty Ltd [2022] NSWDC 486
Court: District Court of New South Wales
Date: 20 October 2022
Judge: Strathdee DCJ
Background
A demolition contractor, Greater Civil Pty Ltd, was engaged to demolish a single-storey factory at Vineyard, NSW in August 2019. The company subcontracted the labour to another firm, whose supervisor directed two workers to climb into an upturned excavator bucket to work at a height of approximately four metres. Neither worker was provided with any fall protection.
The excavator bucket detached from its quick-hitch fitting and fell onto the concrete slab below, taking both workers with it. One worker sustained multiple serious injuries, including rib fractures, a fractured jaw, a fractured scapula and a fractured humerus requiring surgery. The quick-hitch warning buzzer on the excavator was non-operational at the time, and the machine had not been serviced since 2016. A later mechanical inspection found that a critical mounting bolt had been replaced with wire.
Rather than notifying SafeWork NSW of the incident as required by law, the defendant's site supervisor denied any knowledge of it when asked. SafeWork NSW was ultimately alerted two days later by a hospital counsellor assisting the injured worker.
Legal Issues
- Whether the defendant contravened its primary duty 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.
- Whether the defendant failed to immediately notify SafeWork NSW of a notifiable incident as required by s 38(1) of the Act.
- The appropriate penalty for each offence, having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, and the utilty of the guilty plea.
Decision
The defendant pleaded guilty to both offences on 25 July 2022. By its plea, it admitted all elements of each charge. The sentencing hearing proceeded on the basis of an agreed statement of facts, a victim impact statement, and evidence from the defendant's director about financial capacity and contrition.
On the s 32 offence, the court assessed the objective seriousness as significant. The defendant used an excavator bucket as a personnel platform without any fall protection, in circumstances where workers were exposed to a real risk of death or serious injury at height. The safe work method statements prepared before work began failed to address fall risks at all. The excavator itself was in a poor state of maintenance and had a disabled safety warning system.
Aggravating features included the vulnerability of the workers (casual labourers engaged through a labour-hire arrangement), the severity of the injuries sustained, and the defendant's subsequent concealment of the incident. Mitigating factors included the guilty plea, evidence of remorse, cooperation with investigators after initial denials, and the absence of prior convictions. The court also took into account the defendant's limited financial capacity.
On the notification offence under s 38, the court noted that the defendant not only failed to notify SafeWork NSW but actively concealed the incident through the conduct of its site supervisor, who denied knowledge of the accident when questioned. This was treated as a serious aggravating feature of that offence.
Orders Made
- The defendant is convicted of both offences.
- For the s 32 offence: a fine of $600,000 (starting point $800,000, reduced by 25% for the utility of the guilty plea).
- For the s 38 offence: a fine of $18,750 (starting point $25,000, reduced by 25% for the utility of the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of each fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's costs in the agreed sum of $43,565.74.
Key Takeaways
- The District Court confirmed that using an excavator bucket as a working platform at height, without any fall protection and without a safe work method statement addressing fall risks, constitutes a serious contravention of the primary duty in s 19(1) of the Work Health and Safety Act 2011 (NSW).
- A defendant's capacity to pay remains a relevant sentencing consideration in WHS prosecutions, and the court exercised leniency on that basis in fixing the starting-point fine below what the objective gravity of the offence might otherwise have attracted.
- Concealment of a notifiable incident by a supervisor, including actively denying the incident occurred, is a significant aggravating factor in sentencing for the notification offence under s 38.
- The vulnerability of workers engaged through labour-hire or subcontracting arrangements was treated as an aggravating feature, consistent with the principle that courts consider the characteristics of those exposed to risk.
- A 25% discount applied to both fines for the utility of the guilty plea, reflecting the early resolution of proceedings and associated savings in court time and resources.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 38(1)
- Work Health and Safety Regulation 2017 (NSW), cls 78, 79, 291, 292, 299-303, 309, 314
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- 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
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464