Citation: SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524
Court: District Court of New South Wales
Date: 3 November 2022
Judge: Russell SC DCJ
Background
Leda Form Group Pty Ltd was a formwork contractor engaged to supply and install formwork and supporting falsework on a residential apartment construction project at Jordan Springs, NSW. On 21 August 2019, three workers, including Leda's site manager Mr Mohamad Riche, were on the roof deck of one of the buildings preparing to install formwork for a lift overrun. Directly beside the lift shaft was an open penetration measuring 2.1 by 0.7 metres, designed to accommodate an exhaust vent, which dropped approximately 19 metres to the basement concrete floor below.
While working near the lift shaft, Mr Riche stepped backward and fell through the uncovered penetration. He fell 19 metres to the concrete floor below and died from his injuries. He was 38 years old.
SafeWork NSW prosecuted Leda under the Work Health and Safety Act 2011 (NSW). Leda pleaded guilty to failing to comply with its health and safety duty under s 19(1) of the Act, thereby exposing workers to a risk of death or serious injury, contrary to s 32 of the Act. The maximum penalty for the offence was a fine of $1,500,000.
Legal Issues
- What was the appropriate penalty, having regard to the objective seriousness of the offence?
- What mitigating and aggravating factors were relevant to sentencing?
- What discount should apply for the early guilty plea?
- Whether Leda's financial capacity to pay was a relevant consideration, given the absence of evidence on that question?
- What costs order was appropriate?
Decision
The court assessed the objective seriousness of the offence as significant. Leda had failed across multiple dimensions: it did not conduct an adequate risk assessment, did not securely cover or require the covering of the penetration, did not install perimeter guard rails, did not prohibit workers from the roof until adequate protection was in place, did not implement and enforce an adequate Safe Work Method Statement (SWMS), and did not provide adequate information, training, instruction, or supervision to workers. The risk of a fatal fall through an open penetration at height was foreseeable, and the available control measures were straightforward and well-established under the Work Health and Safety Regulation 2011.
The court identified the death of Mr Riche as a serious harm warranting emphasis on general deterrence. The need to deter others in the construction industry from similar failures was a significant sentencing consideration, consistent with principles from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 and earlier authorities.
A 25% discount was applied to reflect Leda's early guilty plea, as conceded by the prosecutor. The court also recognised Leda's cooperation with the prosecution, including prompt provision of all documents requested, as a mitigating factor under s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999.
On the question of capacity to pay, the court noted that Leda bore the evidentiary onus of demonstrating limited financial means. Oral submissions from Leda's representative about its "dire" financial position were not supported by any evidence, and the court declined to take them into account. The court set the base fine at $600,000 before applying the plea discount.
Orders Made
- Leda Form Group Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- Fined $450,000 (being a base fine of $600,000 reduced by 25% for the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Leda Form Group Pty Ltd to pay the prosecutor's costs.
Key Takeaways
- A formwork contractor was held to have breached its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by failing across multiple practical control measures, including covering penetrations, installing guard rails, enforcing a SWMS, and providing adequate supervision, all of which were reasonably practicable.
- Where a defendant seeks a reduction in fine on the basis of limited financial capacity, it bears the evidentiary onus of adducing evidence to that effect; unsupported oral submissions are insufficient.
- The District Court confirmed that general deterrence carries significant weight in work health and safety prosecutions involving worker fatalities, particularly in the construction industry.
- Under s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999, genuine cooperation with the prosecution, including prompt document production, operates as a mitigating factor in sentencing.
- An early guilty plea attracted a 25% discount from the base fine, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2011, cll 78, 79, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 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
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432