Citation: SafeWork NSW v Art Civil Pty Ltd [2023] NSWDC 379
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Strathdee DCJ
Background
Art Civil Pty Ltd is a small demolition and bulk excavation company with 11 employees, led by its sole director. In August 2020, the company was engaged as a subcontractor to carry out demolition and civil works at a residential development site in Neutral Bay, NSW.
A casual machine operator employed by the company had worked for the business for approximately 10 years. On 1 September 2020, while using a Caterpillar excavator to remove debris from a first-floor concrete slab, a large metal lintel fell from the slab, punctured the front cabin window of the excavator, and struck the operator's left leg. He was taken by ambulance to Royal North Shore Hospital.
The prosecution arose because the front cabin window's protective mesh screen had been removed by a previous operator before the incident, the company had no record of when the screen was removed, no pre-start plant checklists existed for the relevant period, and the operator had never been shown or signed the company's Safe Work Method Statement (SWMS) for demolition.
Legal Issues
- Whether Art Civil Pty Ltd, as a person conducting a business or undertaking (PCBU), breached its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by failing to ensure, so far as reasonably practicable, that the health and safety of workers was not put at risk
- Whether that failure exposed workers to a risk of death or serious injury, constituting an offence under s 32 of the WHS Act
- What penalty was appropriate, having regard to the objective seriousness of the offence, mitigating and aggravating factors, the utility of a guilty plea, and the purposes of general and specific deterrence
- Whether a 25% discount for the guilty plea was appropriate
- The appropriate order for prosecutor's costs
Decision
The company pleaded guilty to the charge under s 32 of the WHS Act. The maximum penalty applicable at the time of the offence was $1,766,130. Her Honour assessed the appropriate starting point for the fine at $200,000, reflecting the objective seriousness of the offence and the relevant sentencing principles.
Several failures compounded the risk: the protective mesh screen had been removed from the excavator without the company's knowledge or any documented inspection; no pre-start checklists were in place; and the SWMS, which itself identified the need for a screen, had never been communicated to the operator. Both the relevant Codes of Practice and Australian Standard AS2601-2001 required excavators on demolition sites to be fitted with appropriate falling object protection, and that guidance was publicly available.
Her Honour identified a number of mitigating factors. The company had no prior convictions, cooperated with SafeWork NSW's investigation, took corrective action promptly after the incident (fitting heavy-duty mesh screens and engaging safety consultants), and the director personally communicated the new safety measures to the injured worker and assisted him in accessing care. The company was found to be of good character, unlikely to reoffend, and to have demonstrated genuine remorse.
The court allowed a 25% reduction in the fine for the utilitarian value of the early guilty plea, in accordance with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383. The starting fine of $200,000 was accordingly reduced to $150,000.
Orders Made
- Art Civil Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fine of $150,000 imposed (reduced from a starting point of $200,000 by 25% to reflect the guilty plea)
- 50% of the fine to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Defendant to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW)
Key Takeaways
- A PCBU's duty under s 19(1) of the WHS Act is positive and non-delegable: it requires active identification and elimination or minimisation of workplace risks, not merely having safety documents in place if those documents are not communicated to workers.
- The absence of pre-start checklists, failure to communicate an SWMS to the relevant worker, and lack of records concerning plant inspections each contributed to the finding of a breach, even though the company had a SWMS that correctly identified the risk.
- Under the relevant Codes of Practice and Australian Standard AS2601-2001, excavators used in demolition work were required to be fitted with appropriate falling object protection structures, and those requirements were publicly accessible at the time of the incident.
- A 25% discount for the utilitarian value of a guilty plea remains available in WHS prosecutions, consistent with R v Thomson & Houlton, where the plea is entered early and its utility is accepted by the court.
- Post-incident remediation, genuine cooperation with the regulator, and demonstrated remorse (including direct engagement with the injured worker) are relevant mitigating factors in WHS sentencing, though they do not negate the gravity of the underlying failure.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 205, 214
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Key Cases:
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- 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
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632