Citation: SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177
Court: District Court of New South Wales
Date: 1 June 2023
Judge: Scotting DCJ
Background
G&Z Form Group Pty Ltd was a formwork and steel-fixing subcontractor engaged on a construction site at Belrose, NSW. The principal contractor, Richard Crookes Constructions Pty Ltd, had also engaged a separate crane crew from Prime Construction Solutions Pty Ltd, including a dogman named Nader Arnaout.
On 29 April 2020, G&Z workers had removed and flipped aluminium Skydeck panels in part of the formwork deck to create penetrations for column installation. Those penetrations, each measuring 1500mm x 750mm, were inadequately covered by the flipped panels. The panels were not marked to indicate they concealed open penetrations, and no barriers prevented other trades from accessing the area.
Mr Arnaout, while directing a crane load to land in that area, stepped on a flipped panel covering one of the penetrations. The panel gave way and he fell approximately 2.9 metres, becoming impaled on a steel reinforcing bar through his left shoulder. He was cut free by Fire and Rescue, taken to Royal North Shore Hospital, and underwent emergency surgery. He suffered serious and lasting injuries including complete severance of a nerve in his shoulder.
Legal Issues
- Whether G&Z failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing Mr Arnaout to a risk of death or serious injury, contrary to s 32 of that Act
- The appropriate penalty, having regard to:
- The objective seriousness of the offence
- Aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999
- The offender's capacity to pay a fine
- The utilitarian value of a guilty plea
Decision
G&Z pleaded guilty and appeared for sentencing. His Honour assessed the objective seriousness of the offence as falling in the mid-range. The risk of harm was foreseeable and preventable. Simple measures, such as clearly marking penetration covers or erecting barriers to exclude other trades from the incident area, were available and not taken. The risk was also enduring rather than momentary.
The court identified the serious physical harm actually suffered by Mr Arnaout as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. The offence under the Work Health and Safety Act does not require that injury actually occur, but the injuries here were sufficient to establish the aggravating factor.
On mitigating factors, the court accepted that G&Z had no prior convictions, had demonstrated genuine remorse, had cooperated with the SafeWork investigation, and had taken significant steps after the incident to improve its safety systems. The offender's sole director gave evidence accepted as credible. A 25% discount applied to reflect the guilty plea's utilitarian value, consistent with R v Thomson & Houlton and R v Borkowski.
The court also found that G&Z had a reduced capacity to pay, noting precarious finances, significant borrowings, and personal contributions by the directors. However, the company retained ongoing turnover and some capacity to service a fine over time, which the court factored into the final penalty.
Orders Made
- G&Z Form Group Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $240,000 reduced by 25% for the guilty plea, then further reduced for limited capacity to pay, resulting in a final fine of $100,000
- Offender to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor
Key Takeaways
- The District Court confirmed that actual injury is not an element of an offence under s 32 of the Work Health and Safety Act 2011, which requires only the creation of a risk of death or serious injury. However, where injury does occur, it constitutes an aggravating factor at sentencing.
- A 25% discount for a guilty plea was applied in accordance with established principles from R v Thomson & Houlton and R v Borkowski, reflecting both the utilitarian value of the plea and its weight as an indicator of remorse.
- Objective seriousness was assessed as mid-range where foreseeable risks arose from a failure to mark penetration covers or restrict access to the work area, with no complex or technically difficult remediation required.
- Capacity to pay is a distinct consideration at sentencing for corporate offenders. The court reduced the fine below the post-discount figure of $180,000, to $100,000, based on evidence of the company's precarious financial position, while noting its ongoing capacity to pay over time.
- Under s 122(2) of the Fines Act 1996, the court directed that 50% of the fine be paid to the prosecutor, SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e), (h), (i), (k), (m), 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412