Citation: SafeWork NSW v Mars Commercial Pty Ltd [2023] NSWDC 531
Court: District Court of New South Wales
Date: 1 December 2023
Judge: Strathdee DCJ
Background
The defendant was the principal contractor for a building refurbishment project at 238 Castlereagh Street, Sydney. It engaged North South Carpentry and Joinery Pty Ltd for carpentry works, and North South in turn subcontracted a qualified carpenter, Mr Comiskey, to provide carpentry services on site.
On 19 November 2020, Mr Comiskey and a North South supervisor, Mr Reidy, were working on level 3 of the building near a mezzanine and a lift void. They were removing roof rafters in an unscheduled, out-of-sequence task for which no high-risk work assessment had been carried out. There were no fall restraint mechanisms on the mezzanine or the mobile scaffold, and the mobile scaffold had been assembled without a handrail between the work platform and the void.
Mr Comiskey fell approximately seven to eight metres through the void, striking the side of the void as he fell and landing on scaffolding planks that prevented him from falling further. He suffered catastrophic injuries including a C6 spinal injury causing no movement below his chest, multiple skull fractures, and bilateral forearm injuries requiring surgical intervention.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers, thereby exposing those workers to a risk of death or serious injury contrary to s 32 of that Act
- The appropriate sentence, including the objective seriousness of the offence, applicable mitigating and aggravating factors, the appropriate discount for the guilty plea, and the weight to be given to general and specific deterrence
- Whether a court-ordered training requirement was appropriate under s 241 of the WHS Act
- Whether the defendant should pay the prosecutor's costs
Decision
The defendant pleaded guilty. The court assessed the offence as objectively serious. Multiple failures contributed to the incident: no high-risk work assessment was conducted before the unscheduled rafter removal; there were no fall restraint mechanisms, harness attachment points, edge protection, or void coverage at the relevant work area; and the safe work method statements, although in place, had no evidence of worker training or comprehension. SafeWork NSW had issued improvement notices about fall risks at the same site in August 2020, and although those notices were complied with, the broader system of fall prevention remained inadequate.
In assessing the sentence, the court weighed aggravating factors including the prior improvement notices and the severity of Mr Comiskey's injuries. Mitigating factors included the defendant's guilty plea, its cooperation with the investigation, evidence of remorse and contrition, steps taken since the incident to improve safety practices, and limited financial capacity. The court noted that but for a strong subjective case, the appropriate base fine would have been $750,000; having regard to the mitigating factors, the court set the base fine at $550,000 before applying the guilty plea discount.
The court applied a 25% discount on the fine to reflect the utility of the early guilty plea, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. The fine was reduced from $550,000 to $412,500. The court also exercised its power under s 241 of the WHS Act to order the defendant to arrange for its sole director and two other senior employees with supervisory functions to complete a Certificate IV in Work Health and Safety.
On costs, the court confirmed that an order for the prosecutor's costs is the normal rule following a successful prosecution, noting that costs are compensatory rather than punitive. The court also took into account both the costs payable to the prosecutor and the defendant's own legal costs when setting the monetary penalty.
Orders Made
- The defendant is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $412,500 is imposed (base fine of $550,000 reduced by 25% for the guilty plea).
- Pursuant to s 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 costs, as agreed or assessed.
- Pursuant to s 241 of the WHS Act, the defendant is to arrange for its sole director (Eleftherios Gavriilidis) and two other senior employees who engage in, or are likely to engage in, supervisory work to complete a Certificate IV in Work Health and Safety by 21 November 2024.
- The defendant is to provide the prosecutor with evidence of completion of the training order by 30 November 2024.
Key Takeaways
- The District Court found the offence objectively serious where the defendant, as principal contractor, failed to ensure fall protection systems were in place, failed to require a high-risk work assessment before unscheduled work near a void, and failed to ensure safe work method statements were properly understood by workers.
- A guilty plea discount of 25% applied to reflect the utility of the plea, consistent with established NSW sentencing principles for WHS matters.
- Prior improvement notices issued by the regulator about fall risks at the same site were treated as an aggravating factor, even though those specific notices had been complied with, because the broader risk of falls from height remained inadequately controlled.
- Under s 241 of the WHS Act, the court has power to order a corporate defendant to arrange for its director and senior supervisory employees to undertake formal WHS training as part of the sentence.
- Prosecutor's costs following a successful WHS prosecution are the normal order and are characterised as compensatory rather than punitive; the court may take the costs burden into account when calibrating the monetary penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 241
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Latoudis v Casey (1990) 170 CLR 534
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson and Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398