Citation: SafeWork NSW v Universal Propping & Supports Pty Limited [2023] NSWDC 348
Court: District Court of New South Wales
Date: 1 September 2023
Judge: Strathdee DCJ
Background
The defendant, a crane supply company operating since 2007, was engaged to install and operate a tower crane at a Kiama construction site in March 2019. The company employed a crane operator and a dogman (a worker who guides crane loads) to manage lifting operations. Critically, the dogman had no prior experience in that role before joining the company just three weeks before the incident.
On 15 May 2019, the crane crew was directed to lift triple packs of formwork timber from an internal courtyard to a work zone on Bong Bong Street. The path of travel required loads to pass over a neighbouring building and public access areas due to scaffolding obstructing direct transfer. Neither the operator nor the dogman had a clear line of sight to the work zone at the same time during the lift.
A truck driver engaged by a separate subcontractor had parked in the work zone to collect formwork materials. He was unaware the crane was operating above him. A load became offset during lifting, began to swing uncontrollably, and fell onto the road and footpath near the truck. The timber struck the ground and ricocheted into the worker, causing severe injuries including traumatic brain injury, a torn retina, rib fractures, and ongoing hearing loss. The defendant pleaded guilty to failing to ensure the health and safety of other persons so far as reasonably practicable, contrary to sections 19(2) and 32 of the Work Health and Safety Act 2011 (NSW).
Legal Issues
- What was the appropriate starting fine, having regard to the objective seriousness of the offence against the maximum penalty of $1,500,000?
- What discount should apply for the utilitarian value of the guilty plea?
- What weight should be given to mitigating factors, including remorse, contrition, and the defendant's safety record before and after the incident?
- What reduction, if any, was warranted by the defendant's limited financial capacity to pay?
- Whether the prosecutor's costs should be awarded, and how that liability interacted with the fine calculation.
Decision
Strathdee DCJ assessed the objective seriousness of the offence as falling in the mid-range. The risk of death or serious injury was significant: loads were being transferred over public areas, the barriers protecting the work zone were unfilled and inadequate, an inexperienced dogman had no clear line of sight to the landing area, and the crane operator simultaneously lost visual contact with the load during transfer. The victim impact statement confirmed life-altering consequences for the injured worker.
The court accepted several mitigating factors. The defendant had no prior convictions, cooperated with the investigation, expressed genuine remorse, and had since implemented improved safety procedures. A 25% discount was applied to the starting fine to reflect the utilitarian value of the guilty plea, consistent with the principles in the Crimes (Sentencing Procedure) Act 1999 (NSW). The court noted that a plea of guilty in work health and safety matters carries real utilitarian value, including the sparing of the injured worker from having to give evidence.
On financial capacity, the court accepted that the defendant faced genuine difficulty paying a large fine without affecting its ability to continue operating. Critically, the court noted it would be counterproductive to require the defendant to liquidate its crane and plant assets, as those are the very means by which the company earns income. The court exercised its discretion under section 6 of the Fines Act 1996 (NSW) to reduce the post-plea fine by a further 50% on account of limited financial means.
Costs awarded to the prosecutor were treated as compensatory rather than punitive, consistent with Latoudis v Casey (1990) 170 CLR 534. The court factored the defendant's obligation to pay both prosecution costs and its own legal costs into the overall assessment of the penalty, particularly given the evidence of limited capacity to pay.
Orders Made
- The defendant was convicted of the offence.
- A base fine of $400,000 was reduced by 25% for the guilty plea, producing a fine of $300,000.
- That fine was further reduced by 50% under section 6 of the Fines Act 1996 (NSW), resulting in a final fine of $150,000.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's agreed costs of $30,000 pursuant to section 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A base fine of $400,000 (before plea discount and financial capacity reduction) reflects mid-range objective seriousness for a category 2 WHS offence where an inexperienced crew conducted lifts over public areas without adequate sight lines or barriers, resulting in life-altering injuries.
- Under section 6 of the Fines Act 1996 (NSW), a court may reduce a fine substantially where evidence establishes genuine difficulty in paying without threatening the defendant's continued operation, provided the objective seriousness of the offence still justifies a significant penalty.
- The District Court confirmed that requiring a defendant to liquidate its core operational assets to pay a fine may be an unrealistic expectation, and that consideration properly factors into the financial capacity assessment.
- Prosecutor's costs are compensatory in nature and are not punitive; the court took those costs into account as part of the overall financial burden when calibrating the final fine amount.
- An inexperienced dogman, inadequate barriers, and the simultaneous loss of visual contact with a swinging load over public areas each contributed to the court's assessment that the offending was not at the lower end of the seriousness spectrum.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32
- Work Health & Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- Latoudis v Casey (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Jahandideh v R [2014] NSWCCA 178
- R v Cage [2006] NSWCCA 304
- R v MA [2004] NSWCCA 92
- R v Miria [2009] NSWCCA 68
- Orbit Drilling v The Queen (2012) 35 VR 399
- Haynes v CI & D Manufacturing (No 2) (1995) 60 IR 455
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384