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District Court 8 February 2023

SafeWork NSW v Apex Building Systems Pty Ltd

[2023] NSWDC 14

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Apex Building Systems Pty Ltd [2023] NSWDC 14
Court: District Court of New South Wales
Date: 8 February 2023
Judge: Russell SC DCJ

Background

Apex Building Systems Pty Ltd was the principal contractor for a construction project at Vineyard, New South Wales. In August 2019, Apex engaged a subcontractor, Greater Civil Pty Ltd, to demolish a single-storey steel-framed building on the site. Greater Civil in turn engaged a labour hire company, Astute, to provide workers for the demolition.

On 21 August 2019, after the Apex project manager had left the site for the day, Greater Civil's site supervisor attached an excavator bucket upside-down to the arm of a Caterpillar excavator and used it to lift two workers approximately four metres into the air to carry out demolition work. The bucket was not designed as a working platform or personnel carrier, and no fall protection was provided to the workers. The quick-hitch warning buzzer, which should have sounded an audible alert when the attachment was unlocked, was non-operational. The bucket detached from the excavator arm and fell, along with both workers, onto the concrete slab below.

One worker suffered multiple serious fractures, including to his jaw, ribs, shoulder and arm, requiring surgery and extensive ongoing treatment. He returned to Sri Lanka and continues to experience significant daily pain and loss of hand function. SafeWork NSW prosecuted Apex under the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary health and safety duty, thereby exposing the two workers to a risk of death or serious injury.

  • Whether Apex, as principal contractor, failed to discharge its duty under section 19 of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers so far as reasonably practicable.
  • What constituted the appropriate penalty, having regard to the objective seriousness of the offence, mitigating and aggravating factors, and the defendant's capacity to pay.
  • Whether a discount should apply to reflect Apex's early plea of guilty.
  • What orders should be made in relation to prosecution costs.

Decision

Russell SC DCJ accepted Apex's guilty plea to an offence under section 32 of the Work Health and Safety Act 2011 (NSW). The maximum penalty for the offence was a fine of $1,500,000. The prosecution alleged that Apex failed to take reasonably practicable measures in three key respects: it did not verify that Greater Civil had conducted a proper risk assessment before demolition commenced; it did not require Greater Civil to provide a safe work method statement for work at height; and it did not maintain appropriate supervision of its subcontractors and their workers.

The court assessed the objective seriousness of the offence in the context of those failures. The risk of serious injury or death from working at height without proper fall protection was foreseeable, and the measures available to eliminate or minimise that risk were well established and not burdensome. The court also considered the serious and lasting consequences suffered by one of the injured workers, taking into account a victim impact statement detailing his ongoing pain, loss of function, financial hardship, and departure from Australia.

The court arrived at a base fine of $240,000, which it characterised as reflecting the objective gravity of the offending and the relevant sentencing considerations under the Crimes (Sentencing Procedure) Act 1999 (NSW). That figure was then reduced by 25 percent to reflect Apex's early plea of guilty. The resulting fine was $180,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), the court ordered that 50 percent of the fine be paid to the prosecutor, SafeWork NSW.

Orders Made

  • Apex Building Systems Pty Ltd convicted (31 January 2023).
  • Apex Building Systems Pty Ltd ordered to pay a fine of $180,000.
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine to be paid to the prosecutor.
  • Apex Building Systems Pty Ltd ordered to pay the prosecutor's costs.

Key Takeaways

  • A principal contractor's duty under section 19 of the Work Health and Safety Act 2011 (NSW) extends to verifying that subcontractors have conducted risk assessments, obtained safe work method statements, and implemented appropriate systems for high-risk work, even where the principal contractor does not directly control the workers carrying out that work.
  • Failure to supervise a subcontractor's demolition activities, combined with the absence of any fall-protection regime for work at height, is treated as a serious breach capable of attracting a substantial penalty, even where the immediate cause of the incident was the conduct of the subcontractor and its workers.
  • The District Court applied a 25 percent reduction to the base fine to reflect an early guilty plea, consistent with the discount principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under section 122(2) of the Fines Act 1996 (NSW), the court directed that half the fine be paid directly to the prosecuting regulator, SafeWork NSW, a mechanism that operates separately from any costs order.
  • The severity of harm suffered by an injured worker, including long-term physical, financial and psychological consequences documented in a victim impact statement, forms part of the factual matrix the sentencing court weighs when assessing the appropriate penalty.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), ss 78, 79, 291, 292, 309, 314
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases
- 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
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Greater Civil Pty Limited [2022] NSWDC 486
- 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
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566