Citation: SafeWork NSW v Synergy Scaffolding Services Pty Ltd [2022] NSWDC 584
Court: District Court of NSW
Date: 25 November 2022
Judge: Scotting DCJ
Background
The offender, a scaffolding contractor, was engaged by a construction company to design, erect, maintain and dismantle scaffolding at a residential and commercial development in Macquarie Park. Over several months, ties connecting the scaffold structure to the adjacent building were progressively removed, yet the scaffold remained in use and became grossly overloaded. By 1 April 2019, the scaffold was carrying a live load of approximately 17,905 kilograms.
On that date, the scaffold collapsed. Christopher Cassaniti, an 18-year-old first-year formwork apprentice, was killed. A co-worker, Khaled Wehbe, was trapped beneath the structure and sustained serious crush injuries. Five other workers narrowly escaped death or serious injury.
SafeWork NSW prosecuted the scaffolding contractor for breaching its health and safety duty under the Work Health and Safety Act 2011, exposing seven named workers to a risk of death or serious injury. The maximum penalty for the offence was a fine of $3,000,000.
Legal Issues
- What was the appropriate penalty for a category 1 offence under section 31 of the Work Health and Safety Act 2011 following a plea of guilty?
- How should objective seriousness be assessed given the specific failures in scaffold design, systems of work, supervision and load management?
- What weight should be given to mitigating factors, including the guilty plea, cooperation with investigators, and remorse?
- What discount applied to the fine given the timing of the guilty plea?
Decision
His Honour found that the scaffold's collapse resulted from a culmination of failures. The offender's original scaffold design did not specify load ratings for each level of the structure, contrary to industry practice. The Safe Work Method Statement in place at the time did not address the risks of overloading, collapsing scaffolding, or unauthorised alterations by other trades. The leading hand at the site had received no formal supervisory training.
The Court assessed the offending as serious in its objective gravity. The scaffold was grossly overloaded at the time of collapse, and the failures in design documentation and systems of work were significant. While the Court acknowledged that other workers on the site had contributed to the collapse by removing ties without authorisation, this did not diminish the offender's own culpability.
On mitigating factors, the Court noted the absence of prior convictions, cooperation with the SafeWork investigation (described as not substantial in extent), and remorse evidenced by the guilty plea. Victim impact statements from the deceased's mother and from Mr Wehbe were taken into account. The Court noted the ongoing physical, psychological and financial impacts Mr Wehbe continued to suffer, as well as the profound and enduring grief of the Cassaniti family.
The offender had been listed for a seven-week hearing commencing 25 July 2022 but entered a guilty plea on 21 July 2022, four days before the hearing was due to start. Taking into account the utilitarian value of the late plea, the Court applied a 10% discount. Starting from a base fine of $2.2 million, the discount produced a final penalty of $2 million.
Orders Made
- The offender was convicted.
- A fine of $2,000,000 was imposed.
- The offender was ordered to pay the prosecutor's costs, as agreed or assessed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A late guilty plea, entered four days before a seven-week hearing, attracted only a 10% discount on penalty, reflecting its limited utilitarian value under the principles in R v Thomson & Houlton and R v Borkowski.
- Under the Work Health and Safety Act 2011, a category 1 offence by a corporation carries a maximum fine of $3,000,000. The District Court imposed a fine of $2 million after the discount, signalling that a penalty in the upper range was warranted for serious systemic failures.
- Failures in scaffold design documentation, including the absence of load ratings for individual platform levels contrary to industry practice, were treated as material to the objective seriousness of the offence.
- Where multiple parties on a construction site contributed to a workplace incident, a defendant's culpability is assessed by reference to its own failures, and the unlawful conduct of others does not operate as a substantial mitigating factor.
- Victim impact statements played a role in sentencing, with the Court expressly noting that harm to the deceased worker's family constituted harm to the community under the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 31
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 30E
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Youkhana [2004] NSWCCA 412