Citation: SafeWork NSW v SLD Projects Pty Ltd [2022] NSWDC 574
Court: District Court of New South Wales
Date: 18 November 2022
Judge: Scotting DCJ
Background
A residential building and renovation company was the principal contractor for a home renovation project in Forestville, NSW. Its sole director and sole employee managed the site and worked alongside labourers supplied through a labour hire firm. One of those labourers, a young Irish national on a Working Holiday Visa, had obtained his White Card only weeks earlier and had no training for high-risk or work-at-height tasks.
On 12 September 2019, his second day on site, the labourer was directed to remove timber battens from roof joists approximately three metres above the ground floor. He was standing on the joists when he fell backwards, either landing on a joist that broke beneath him or falling through to the floor below. He sustained skull fractures, intracranial haemorrhage, hearing loss, and loss of sensation in his fingertips, and subsequently developed epilepsy and vertigo as lasting consequences of his brain injuries.
SafeWork NSW prosecuted the company under s 32 of the Work Health and Safety Act 2011, alleging it failed to comply with its primary duty of care under s 19(1) and thereby exposed the worker to a risk of death or serious injury. The company pleaded guilty.
Legal Issues
- What was the objective seriousness of the offence, having regard to the nature and foreseeability of the risk and the simplicity of available precautions?
- What mitigating factors were relevant to the penalty, including the guilty plea, cooperation with investigators, remorse, rehabilitation steps, and the company's size?
- What fine was appropriate, and what discount should apply to reflect the utilitarian value of the guilty plea?
Decision
His Honour found the offence carried significant objective seriousness. The company had conducted no documented risk assessments, prepared no Safe Work Method Statement or Work Health and Safety Management Plan, and had not inducted the injured worker or informed him that he would be working at height. The perimeter scaffolding already erected was incomplete, with missing handrails, mid-rails, and transoms, and no harnesses or fall prevention devices were available on site. The risk of serious injury from a fall at that height was obvious and well known, and the measures needed to address it were straightforward and inexpensive.
His Honour applied the 2019 Court of Criminal Appeal authorities, particularly Ceerose, DSF Constructions, and Macmahon Mining, which confirm that objective seriousness is heightened when an offender fails to take simple, well-known, and inexpensive steps to address a risk with serious potential consequences. This was characterised as precisely such a case.
On the mitigating side, the court recognised that the company had no prior safety incidents or SafeWork notices before this event, had cooperated with the investigation, had taken substantial remedial steps after the incident, and that Mr La Delfa had expressed genuine remorse on its behalf. The company's small size, with typically three projects running concurrently at values of $300,000 or less, was also taken into account. The court assessed good prospects of rehabilitation.
Before applying the guilty plea discount, the court fixed the appropriate fine at $240,000. A 25% reduction for the early guilty plea, consistent with the principles in R v Thomson and Houlton and R v Borkowski, produced a final penalty of $180,000.
Orders Made
- SLD Projects Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- Fine of $180,000 imposed (reduced from $240,000 by 25% for the guilty plea).
- The offender to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor.
Key Takeaways
- Under the 2019 Court of Criminal Appeal authorities (Ceerose, DSF Constructions, Macmahon Mining), objective seriousness is increased where an offender failed to implement simple, well-known, and low-cost controls against a risk capable of causing death or serious injury. The District Court applied this principle directly on the facts here.
- A complete absence of documented risk assessments, safe work method statements, height-work inductions, and fall arrest equipment across an active construction site was treated as a serious compounding of the primary duty failure, not merely as background context.
- Mitigating factors, including a clean safety record of approximately 17 years, genuine remorse, post-incident remediation, and cooperation with regulators, were each identified and weighed but did not substantially reduce the pre-discount penalty from what the objective circumstances warranted.
- A 25% discount for a guilty plea reflected its utilitarian value to the prosecution and was consistent with established principles in R v Thomson and Houlton and R v Borkowski.
- The comparable decision in SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 was noted but treated with caution, having been decided before the 2019 Court of Criminal Appeal trilogy clarified the approach to objective seriousness in WHS prosecutions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Attorney-General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35
- Attorney-General (NSW) v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Attorney-General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398