Citation: SafeWork NSW v L&N Properties Pty Limited [2023] NSWDC 512
Court: District Court of New South Wales
Date: 23 November 2023
Judge: Scotting DCJ
Background
L&N Properties Pty Ltd was the principal contractor engaged to remove and replace non-compliant external cladding on a five-storey building at St Leonards. The company subcontracted project management to Think Tank Building Solutions Pty Ltd, which in turn engaged a labourer (Mr Aghakhani) and a scaffolding subcontractor (Site-Wide Labour Services Pty Ltd). The offender's site supervisor was Mr Faulkner, who received no formal training from the offender and was assessed only through on-the-job performance.
On 12 November 2020, Mr Aghakhani entered a declared exclusion zone beneath active scaffolding dismantling work to collect tools and rubbish from the glass atrium roof. A scaffold standard (a vertical pole 3.2 metres long) fell from the fourth level of scaffolding, shattering the glass atrium. Mr Aghakhani fell 4.4 metres to the ground. Simultaneously, a courier, Mr Savalakis, was walking through the atrium below and was struck by large glass shards.
SafeWork NSW prosecuted the offender for two Category 2 offences under the Work Health and Safety Act 2011: failing to ensure the health and safety of a worker (Mr Aghakhani) and failing to ensure that other persons were not put at risk by the conduct of its business (Mr Savalakis). The offender pleaded guilty to both charges.
Legal Issues
- The objective seriousness of each offence under s 32 of the Work Health and Safety Act 2011
- The application of relevant aggravating and mitigating factors to sentencing
- The appropriate guilty plea discount
- The offender's capacity to pay a fine
- The application of the totality principle where two offences arose from the same incident
- The just and appropriate total penalty across both offences
Decision
The court assessed the objective seriousness of both offences as significant. Multiple systemic failures contributed to the incident: impact protection over the glass atrium had been removed before the incident and not replaced; no toe boards were in place on the scaffolding; the site supervisor watched Mr Aghakhani enter the exclusion zone without intervening; and neither the supervisor nor the project manager communicated to the scaffolders that work was being carried out below. The offender had also relied on the site supervisor to discharge its obligations as principal contractor without providing him any formal training.
In mitigation, the court took into account the offender's guilty plea, absence of prior convictions, remorse (evidenced partly by the director visiting the injured worker in hospital on two occasions), cooperation with the investigation, and steps taken after the incident to improve safety systems. The court also noted the offender was a relatively small company with limited capacity to pay, with its sole director earning approximately $60,000 per annum.
The court nominated a starting fine of $200,000 for the s 19(1) offence (risk to the worker) and $160,000 for the s 19(2) offence (risk to members of the public), each subject to a 25% discount for the early guilty plea. Applying both the totality principle and the offender's limited financial capacity, the court reduced the final fines to $50,000 per offence, arriving at a total of $100,000. The court noted that a substantial fine remained warranted despite limited capacity to pay, given the seriousness of the offences and the need for general deterrence.
Orders Made
- L&N Properties Pty Ltd convicted of both offences under s 32 of the Work Health and Safety Act 2011
- Fine of $50,000 imposed for the s 32 offence involving breach of s 19(1) (worker safety duty)
- Fine of $50,000 imposed for the s 32 offence involving breach of s 19(2) (public safety duty)
- Total fines: $100,000
- 50% of the fines to be paid to SafeWork NSW as prosecutor, pursuant to s 122(2) of the Fines Act 1996
- The offender to pay the prosecutor's costs of $30,000
Key Takeaways
- A principal contractor's obligations under s 19 of the Work Health and Safety Act 2011 extend to both workers engaged through subcontractors and members of the public who may be put at risk by the conduct of the business, giving rise to distinct and separately punishable duties.
- Relying on a site supervisor to discharge principal contractor obligations, without providing formal training or assessing competency through anything other than on-the-job observation, was identified by the District Court as a significant systemic failure contributing to the objective seriousness of the offences.
- Where two offences arise from the same incident, the totality principle applies to ensure the combined penalties reflect the overall criminality involved, rather than simply aggregating the penalty for each offence in isolation.
- An offender's limited capacity to pay does not automatically reduce a fine to a nominal amount. The District Court confirmed that a substantial fine may still be warranted by the gravity of the offences and the need for general deterrence, even where the offender is a small company.
- An early guilty plea attracted a 25% discount, consistent with the approach in R v Thomson & Houlton and R v Borkowski, with the plea also taken as evidence of remorse.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412