Citation: SafeWork NSW v Think Tank Building Solutions Pty Ltd [2023] NSWDC 532
Court: District Court of NSW
Date: 1 December 2023
Judge: Strathdee DCJ
Background
Think Tank Building Solutions Pty Ltd was a project management subcontractor engaged on a cladding removal project at a five-storey building in St Leonards. The company was responsible for engaging and managing subcontracted trades on site, including a scaffolding firm and individual labourers. There was no formal written agreement governing the arrangement; the company operated under a verbal profit-sharing arrangement with the principal contractor.
On 12 November 2020, a labourer engaged by the defendant accessed the building's glass atrium roof to remove panels. At around 12:30pm, a 3.2-metre scaffold pole fell from four storeys above, shattered the glass, and caused the labourer to fall approximately 4.4 metres to the ground. A courier who happened to be walking through the atrium at the same time was struck by large shards of falling glass.
The labourer suffered serious injuries, including a fractured and dislocated hip, a fractured nose, crushed teeth, a dislocated finger with nerve damage, and lacerations to both knees. He required emergency surgery and was hospitalised for weeks, followed by months of rehabilitation. The courier sustained multiple lacerations requiring stitches and was unable to work for three weeks.
Legal Issues
- Whether the defendant, 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) to ensure the safety of workers, thereby exposing the labourer to a risk of death or serious injury
- Whether the defendant breached its duty under s 19(2) of the WHS Act to ensure that other persons were not put at risk from work carried out as part of its undertaking, thereby exposing the courier to a risk of death or serious injury
- What penalties were appropriate, having regard to objective seriousness, mitigating factors, the utility of the guilty plea, and the defendant's capacity to pay
- How the totality principle applied where two offences arose from a single course of conduct
- Whether the defendant should pay the prosecutor's costs
Decision
The defendant pleaded guilty to both charges. Each offence carried a maximum penalty of $1.5 million, which the court treated as a parliamentary indicator of the seriousness with which such conduct is regarded, following Markarian v The Queen.
Strathdee DCJ assessed both offences as arising from a single course of conduct: the same factual circumstances produced the same risk, with the only distinction being that two different categories of person (a worker and a member of the public) were exposed to it. The court applied the totality principle to avoid a crushing aggregate penalty. The base fine for each offence, absent any capacity to pay issue, was assessed at $600,000, reduced to $300,000 each on totality grounds.
A 20% discount was then applied to each fine to reflect the utilityof the guilty pleas. The court further reduced each fine by 10% under s 6 of the Fines Act 1996 in recognition of the defendant's limited financial capacity to pay, as evidenced by an accountant's letter and the director's affidavit. The court noted that the defendant also faced an obligation to pay the prosecutor's costs, which formed part of the financial burden taken into account.
The court ordered that 50% of each fine be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996, and that the defendant pay the prosecutor's costs as agreed or assessed.
Orders Made
Charge 1 (s 19(1) offence, proceedings 2022/334507):
- Defendant convicted
- Fine of $300,000 reduced by 20% for guilty plea, then reduced by a further 10% under s 6 of the Fines Act 1996
- Fine of $216,000 imposed
- 50% of fine to be paid to the prosecutor (s 122(2), Fines Act 1996)
- Defendant to pay prosecutor's costs as agreed or assessed (s 257B, Criminal Procedure Act 1986)
Charge 2 (s 19(2) offence, proceedings 2022/334496):
- Defendant convicted
- Fine of $300,000 reduced by 20% for guilty plea, then reduced by a further 10% under s 6 of the Fines Act 1996
- Fine of $216,000 imposed
- 50% of fine to be paid to the prosecutor (s 122(2), Fines Act 1996)
- Defendant to pay prosecutor's costs as agreed or assessed (s 257B, Criminal Procedure Act 1986)
Key Takeaways
- A single construction incident can ground multiple WHS Act charges where different categories of person (workers and members of the public) are exposed to the same risk, with separate duties under ss 19(1) and 19(2) engaged by each category.
- The totality principle applies in WHS sentencing where two charges arise from a single course of conduct: the District Court reduced the base fine for each charge from $600,000 to $300,000 to avoid a disproportionate aggregate penalty.
- Guilty pleas attracted a 20% discount in this case, reflecting the court's assessment of their utilityto the proceedings and the timing of the pleas.
- A defendant's demonstrated financial incapacity is a recognised basis for further reducing a WHS fine; here the court applied an additional 10% reduction under s 6 of the Fines Act 1996, with the defendant's obligation to pay costs also factored into the assessment.
- Under s 122(2) of the Fines Act 1996, courts have the power to direct that a portion of a fine be paid directly to the prosecutor; in this case, 50% of each fine was so directed.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Bulga Underground Operations v Nash (2016) 93 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 of New South Wales (1999) 90 IR 464
- Morrison v Powercoal Pty Limited and Anor (No 3) (2005) 147 IR 111
- Latoudis v Casey (1990) 170 CLR 534
- Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- Orbit Drilling v The Queen (2012) 35 VR 399
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310