Citation: SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165
Court: District Court of New South Wales
Date: 23 May 2023
Judge: Russell SC DCJ
Background
Coplex Construction Pty Ltd was the principal contractor engaged to construct 79 residential apartments at a site in Jordan Springs. Coplex subcontracted formwork and falsework to Leda Form Group Pty Ltd. On 21 August 2019, three workers were on the roof deck of Building B preparing to install formwork for a lift overrun.
While attempting to remove a piece of timber from across the lift shaft, a Leda employee named Mr Riche stepped backwards into an open, uncovered penetration approximately 2.1 by 0.7 metres in size. The penetration led to a ventilation shaft roughly 19 metres above the basement concrete floor. Mr Riche fell the full height and suffered fatal injuries. He was 38 years old.
Coplex pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to section 32 of the same Act. The maximum penalty for the offence was a fine of $1,500,000.
Legal Issues
- What was the objective seriousness of the offence, and where did it sit within the range of comparable cases?
- Which mitigating and aggravating factors applied to sentencing?
- What discount, if any, should be applied to reflect the guilty plea?
- What was the appropriate fine, having regard to general and specific deterrence and the defendant's capacity to pay?
Decision
Russell SC DCJ found the offence to be of considerable objective seriousness. The penetration was completely open with no cover, no guard rails, and no exclusion of workers from the area, despite Coplex having conducted a toolbox talk only days earlier reminding workers that penetrations must remain covered. Relevant guidance materials, including the SafeWork NSW Code of Practice on Managing the Risk of Falls and the Safe Work Australia Information Sheet on Safe Work on Roofs, had been published and available to Coplex before the incident.
The court identified several distinct failures by Coplex: it did not require its subcontractor to cover or fence the penetration, did not prevent workers from accessing the roof until adequate protection was in place, did not develop or enforce an adequate Safe Work Method Statement for the relevant high-risk construction work, and did not verify that the subcontractor had done so. Critically, the Coplex Site Manager for Building B was physically present and working alongside Mr Riche at the time of the incident and could not have failed to notice the uncovered penetration. His failure was attributed to Coplex under section 244 of the Act.
On mitigating factors, the court acknowledged the guilty plea, which was treated as an early plea attracting a 25% discount. The court found that no submission had been made regarding capacity to pay, so that consideration did not arise. General deterrence remained a significant sentencing consideration, given the gravity of the fatality and the nature of the failures involved.
The court assessed the appropriate fine at $540,000 before applying the 25% plea discount, arriving at a final fine of $405,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of that fine was directed to be paid to the prosecutor, SafeWork NSW.
Orders Made
- Coplex Construction Pty Ltd convicted.
- Coplex Construction Pty Ltd ordered to pay a fine of $405,000 (representing a $540,000 base fine reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine directed to be paid to the prosecutor.
- Coplex Construction 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) operates independently of any contractual responsibility held by a subcontractor; Coplex remained obligated to ensure penetrations were covered regardless of which party had contracted to install covers.
- Where a corporate defendant's own site manager was physically present at the scene and could not have missed an obvious hazard, that officer's default is attributable to the company under section 244 of the Act.
- Under section 6 of the Fines Act 1996 (NSW), a defendant seeking a reduced fine on capacity-to-pay grounds bears the evidentiary onus of establishing that basis; where no submission is made, the issue does not arise.
- An early guilty plea in Work Health and Safety Act proceedings attracted a 25% discount on the base penalty, consistent with the approach in Green v The Queen and the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The District Court confirmed, consistent with Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, that specific deterrence in WHS sentencing must account for the size and scope of the defendant's operations, and that a substantial fine may remain appropriate on general deterrence grounds even where financial capacity is limited.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 244
- Work Health and Safety Regulation 2011 (NSW), cll 29, 78, 79, 291
- 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
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- SafeWork NSW v Ru Dong Li [2018] NSWDC 189
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- 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
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- BW v R [2011] NSWCCA 176
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- R v Wilkinson (No. 5) [2009] NSWSC 432