Citation: SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Russell SC DCJ
Background
A roofing contractor, Parrish Group NSW Pty Ltd (Parrish), was engaged to install a metal roof on a warehouse construction site at Kembla Grange. Parrish subcontracted the labour component to another company, whose workers included Mr Brandon Boon. Parrish retained responsibility for supplying supervision and ensuring work health and safety compliance on site.
During the works, the method of installing box gutters changed partway through the project. The original method involved installing continuous lengths of gutter board before workers accessed the roof, ensuring no unprotected gaps existed underfoot. From mid-March 2020, workers instead left gaps in the gutter board at locations where drainage sumps were to be installed, covering those gaps only with gutter lining that was not structurally rated to bear a person's weight.
On 31 March 2020, Mr Boon stepped on an unsupported section of gutter lining above one of these gaps and fell 6.8 metres to the concrete slab below. He sustained a right foot fracture and dislocation, a left shoulder dislocation, and a compression fracture to his L5 vertebra. Parrish pleaded guilty to failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Boon to a risk of death or serious injury contrary to s 32 of that Act.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence?
- What weight should be given to mitigating factors, including an early guilty plea and cooperation with the prosecution?
- What weight, if any, should be given to aggravating factors?
- Whether the defendant's capacity to pay a fine was relevant to the penalty imposed.
- What amount of prosecution costs should be ordered?
Decision
The court assessed the objective seriousness of the offence as significant. Parrish was aware that the method of work had changed and that workers were now operating in proximity to inadequately protected sump holes of approximately 800mm x 800mm. Despite conducting toolbox talks reminding workers to be aware of the hazard, Parrish took no steps to prepare a new Safe Work Method Statement or to securely cover the penetrations. The risk was foreseeable and the measures required to eliminate or minimise it were straightforward and well within Parrish's capacity to implement.
The court applied a 25% discount to the fine to reflect Parrish's early guilty plea, consistent with s 22(1) of the Crimes (Sentencing Procedure) Act 1999. The court also noted that Parrish had cooperated fully with the prosecution and produced documents promptly, treating this as a mitigating factor under s 21A(3)(m) of that Act.
The court noted the principles set out in Unity Pty Limited v SafeWork NSW regarding the relationship between a defendant's size and the deterrent effect of a fine. Because no submission was made about Parrish's capacity to pay, the court did not reduce the fine on that basis. The court also directed SafeWork NSW to provide a copy of the judgment to the Minister responsible for workplace safety in the incoming government.
Orders Made
- Parrish Group NSW Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- Fined $300,000 (reduced from a base fine of $400,000 by 25% to reflect the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW as prosecutor.
- Parrish Group NSW Pty Ltd ordered to pay the prosecutor's agreed costs of $37,500.
Key Takeaways
- A 25% discount on the fine was granted for an early guilty plea under s 22(1) of the Crimes (Sentencing Procedure) Act 1999, alongside credit for full cooperation with the prosecution.
- The District Court treated Parrish's awareness of the changed method of work, combined with its failure to update the Safe Work Method Statement or cover the penetrations, as central to assessing the seriousness of the contravention.
- Where a defendant does not raise capacity to pay as an issue, the court will not reduce a fine on that basis, even though capacity to pay is a relevant consideration under s 6 of the Fines Act 1996 (NSW).
- Under s 122(2) of the Fines Act 1996 (NSW), the court may direct that a portion of a fine be paid directly to the prosecuting authority, as occurred here with 50% of the $300,000 fine directed to SafeWork NSW.
- Awareness of a changed and more hazardous method of work, without corresponding updates to safe work documentation or physical controls, will weigh heavily against a defendant when the court assesses the objective gravity of a workplace safety offence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32
- 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
- SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526
- 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