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District Court 16 October 2023

SafeWork NSW v BSA Limited (No. 3)

[2023] NSWDC 417

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

Citation: SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417
Court: District Court of New South Wales
Date: 16 October 2023
Judge: Russell SC DCJ

Background

BSA Limited is a publicly listed technical services construction company. In December 2018, one of its workers, Jayden Hooper, was installing a satellite dish and associated cabling at a Foxtel customer's house in Malabar, NSW. While working underneath the floor of the house, he received a fatal electric shock after coming into contact with energised wiring.

SafeWork NSW prosecuted BSA for breaching its duty under s 19 of the Work Health and Safety Act 2011 (NSW) by failing to comply with that duty and thereby exposing Mr Hooper to a risk of death or serious injury, contrary to s 32 of the Act. The maximum penalty for the offence was a fine of $1,500,000.

The primary judgment (SafeWork NSW v BSA Limited (No. 2) [2023] NSWDC 73) found BSA guilty on 31 March 2023. This sentencing judgment addressed causation, objective seriousness, mitigating and aggravating factors, and the appropriate penalty.

  • Whether BSA's failures to comply with its work health and safety duty caused Mr Hooper's death, to the criminal standard of proof (beyond reasonable doubt), applying the principle that the acts or omissions of the defendant must be a significant or substantial cause of death.
  • The objective seriousness of the offence for sentencing purposes.
  • Whether causation was established so as to trigger the statutory aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (that the offence caused the victim's death).
  • Whether victim impact statements from Mr Hooper's father and sister were admissible, given that admissibility depended on whether the breach of duty had resulted in Mr Hooper's death.
  • The appropriate financial penalty, having regard to BSA's post-incident remediation, its broader work health and safety systems, its early partial guilty plea, and its capacity to pay.

Decision

Causation

The court found, beyond a reasonable doubt, that BSA's breaches were a significant or substantial cause of Jayden Hooper's death. The analysis proceeded from the High Court's approach in Royall v The Queen (1991) 172 CLR 378, requiring identification of the act causing death on a logical and practical basis. The court applied a common sense approach to causation, consistent with that authority and subsequent case law.

Reasonably Practicable Measures and Admitted Failures

At trial, the court had already found that several specific failures by BSA were reasonably practicable measures it ought to have taken. These included: maintaining a system of work requiring a lock or tag on the main switch or meter box when workers isolated power; requiring the use of a volt stick or equivalent voltage testing device; and providing adequate information, training, instruction, and supervision regarding power isolation procedures, the use of locks and tags, the use of volt sticks, and the conduct of adequate risk assessments.

Victim Impact Statements

Having found causation proved, the court held that the two victim impact statements, from Mr Hooper's father (Mark Hooper) and his sister (Chelsea Hooper), were admissible. Both statements described profound and lasting grief. Mark Hooper described constant grief, deteriorating relationships, suicidal thoughts, an inability to work, and severe financial difficulties. Chelsea Hooper described the loss of her hero and the enduring impact on her daily life and enjoyment of family occasions. The court indicated it would take both statements into account in determining the penalty.

Penalty

The court assessed the appropriate fine at $600,000, reflecting its findings on objective seriousness, the established causation of Mr Hooper's death, and the aggravating and mitigating factors. The fine was then reduced by 10% to account for BSA's early guilty plea to certain parts of the summons, producing a final penalty of $540,000. In accordance with s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor. Questions of costs were reserved for a separate hearing.

Orders Made

  • BSA Limited was convicted (on 29 September 2023).
  • BSA Limited was ordered to pay a fine of $540,000 (being $600,000 reduced by 10% for the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • All questions of costs were reserved, with directions made for a separate costs hearing by written submissions.

Key Takeaways

  • A company found guilty of a WHS duty breach under s 32 of the Work Health and Safety Act 2011 (NSW) may face an additional statutory aggravating factor at sentencing where the prosecution proves, beyond reasonable doubt, that the breach was a significant or substantial cause of the worker's death.

  • Causation in WHS prosecutions is assessed on a common sense basis, drawing on the High Court's framework in Royall v The Queen: it is not necessary that the defendant's conduct was the sole cause, only that it was a significant or substantial contributing cause.

  • The District Court confirmed that victim impact statements from family members are only admissible in WHS prosecutions where the court is satisfied the breach of duty resulted in the victim's death, as required by s 27(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Post-incident remediation, such as mandatory toolbox talks, the introduction of non-negotiable safety absolutes, and the expansion of critical control monitoring, was treated as a mitigating consideration in assessing penalty, even where the original failures were significant.

  • Under s 122(2) of the Fines Act 1996 (NSW), the court directed that 50% of the fine be paid to the prosecuting regulator, a mechanism available in WHS penalty proceedings.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- SafeWork NSW v BSA Limited (No. 2) [2023] NSWDC 73
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663
- R v Thompson and Houlton (2000) 49 NSWLR 383
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51