Citation: SafeWork NSW v Urban Field Group Pty Ltd [2022] NSWDC 575
Court: District Court of New South Wales
Date: 18 November 2022
Judge: Scotting DCJ
Background
Urban Field Group Pty Ltd was a construction company engaged as principal contractor on a $5 million residential development in Pendle Hill, New South Wales. The company engaged a painting subcontractor, Abresham Pty Ltd, to carry out painting and preparation work at the site. Abresham in turn employed Asadullah Hussaini, an Afghan migrant who had been in Australia since 2017 and whose wife and ten children remained in Afghanistan.
On 28 August 2019, Mr Hussaini was working alone on a first-floor balcony, grinding and patching soffits at a height of approximately 3.3 metres. He was using a corded angle grinder while standing on a ladder. At around 12.30 pm, a co-worker heard a loud sound and found Mr Hussaini unresponsive on the floor. He had sustained severe head injuries and a right wrist fracture from the fall. He died at Westmead Hospital on 4 September 2019.
SafeWork NSW prosecuted Urban Field Group for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011, thereby exposing workers, including Mr Hussaini, to a risk of death or serious injury. The company pleaded guilty. The proceeding before Scotting DCJ concerned sentencing only.
Legal Issues
- What was the objective seriousness of the offence, having regard to the nature and foreseeability of the risk and the adequacy of the systems of work in place?
- What aggravating and mitigating factors were relevant to the penalty?
- Whether the offender had demonstrated a limited capacity to pay a fine, so as to justify a reduction in the amount imposed?
- What discount, if any, was warranted for the guilty plea?
- What was the appropriate penalty within the maximum of $1.5 million?
Decision
Objective seriousness. The court found the offence to be of moderate to high objective seriousness. The risk of falling from height was well known, foreseeable, and identified in the company's own Safe Work Method Statement for working at height. However, that SWMS was deficient in several respects: it did not specify circumstances permitting ladder use, did not require three points of contact with the ladder at all times, and did not prohibit the operation of two-handed power tools while standing on a ladder. No SWMS for painting and preparation work was obtained from Abresham, and the company's foreman simply assumed one had been provided elsewhere.
Supervision and induction failures. Mr Hussaini had no "white card" (general construction industry safety induction), and Urban Field Group took no steps to verify his training before allowing him to work on site. The company's own SWMS required that subcontractors be supervised and that a supervisor conduct daily hazard inspections. In practice, the site foreman left Mr Hussaini entirely to his own devices, on the assumption that his employer had given him instructions. These failures, taken together, significantly increased Mr Hussaini's exposure to risk.
Mitigating factors. The court accepted several mitigating factors: the guilty plea, cooperation with the SafeWork investigation, no prior convictions, remorse, good prospects of rehabilitation, and evidence of charitable activity by the company. The court applied a 20% discount for the plea, noting that although the offender contested one factual issue and lost, it did so efficiently. The company's capacity to pay was treated as a relevant but not decisive consideration. The court found the evidence on financial capacity to be entirely unconvincing: the company's accounts disclosed approximately $2.1 million in unsecured loans to other parties, about which neither the accountant nor the director could provide meaningful explanation. The court concluded the company had not discharged its onus of demonstrating limited capacity to pay.
Orders Made
- Urban Field Group Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- Fine of $500,000 imposed, reduced by 20% for the guilty plea, resulting in a fine of $400,000.
- The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- The District Court confirmed that a principal contractor's WHS duty extends to ensuring that subcontractors' workers are adequately inducted, trained, and supervised, even where those workers are supplied and directed day-to-day by the subcontractor.
- A Safe Work Method Statement that identifies a risk but fails to specify adequate control measures, such as maintaining three points of contact on a ladder or prohibiting two-handed power tool use at height, does not satisfy a principal contractor's duty to manage that risk.
- Where an offender seeks a reduced fine on the basis of limited capacity to pay, it bears the evidentiary onus of satisfying the court on that issue; unexplained significant assets on the company's balance sheet will undermine that claim.
- A 20% guilty plea discount was applied notwithstanding the offender's unsuccessful contest of one factual issue, on the basis that the contest was conducted efficiently.
- Under section 122(2) of the Fines Act 1996, the court directed that 50% of the fine be paid to SafeWork NSW as prosecutor, a mechanism available in WHS prosecutions that practitioners and regulators should note is routinely considered at sentencing.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 21A(3)(m)
- Fines Act 1996 (NSW), sections 6 and 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Olbrich (1999) 199 CLR 270
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- Royall v The Queen (1991) 172 CLR 378