Citation: SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56
Court: District Court of NSW
Date: 15 March 2023
Judge: Strathdee DCJ
Background
A solar panel installation company and its sole director pleaded guilty to category 2 offences under the Work Health and Safety Act 2011 (NSW) following a serious workplace incident. The company was engaged to install solar panels on a residential garage roof at Albion Park Rail in August 2020. A full-time employee attended the site without any training or qualification to work at heights.
The incident occurred when the director arrived on site and instructed the untrained worker to access the roof. While receiving solar panels passed up by the director, the worker stepped onto a polycarbonate skylight that was indistinguishable in colour from the surrounding roof surface. The sheeting gave way, and the worker fell approximately 3.87 metres to a concrete floor below. He sustained a fractured skull, two broken wrists, a cracked ear bone, two cracked ribs, and residual mild hearing loss.
No site inspection or risk assessment had been conducted before work commenced. The company's existing Safe Work Method Statement was generic rather than site-specific, did not identify skylights as a hazard, and was not used on the day. No edge protection, fall restraints, skylight covers, or crawl boards were provided.
Legal Issues
- What penalties were appropriate for the corporate defendant under s 32 of the WHS Act for failing to comply with its primary duty under s 19(1), thereby exposing workers to a risk of death or serious injury?
- What penalty was appropriate for the individual defendant (the director) under s 27(1) of the WHS Act for his own failure to comply with that same duty?
- What discount applied to reflect the utility of each defendant's guilty plea?
- How should the court exercise its discretion under s 6 of the Fines Act 1996 (NSW) to adjust the fines actually payable, having regard to capacity to pay?
- What costs order was appropriate?
Decision
The court convicted both defendants. For the corporate defendant, the court assessed the objective seriousness of the offence and set a base fine of $400,000 (against a maximum of $1,500,000). A 25% discount was applied for the guilty plea, producing a fine of $300,000. The court then exercised its discretion under the Fines Act to reduce the payable amount to $150,000, having regard to the company's limited size and financial capacity. The court applied the principle from Nash v Silver City Drilling that a fine which would push a small company toward insolvency may not serve the objects of the WHS Act.
For the individual director, the court reached a notably different conclusion on objective seriousness. Mitigating circumstances personal to the director, including his financial position and individual culpability assessed against the totality of the conduct, produced a base fine of only $1,000 before the 25% guilty plea discount. After that reduction to $750, the court exercised its Fines Act discretion to halve that amount to $375.
The court also ordered that 50% of each fine be paid to the prosecutor, as required by s 122(2) of the Fines Act. Prosecution costs of $30,000 (exclusive of GST) were ordered against both defendants jointly.
Orders Made
- Both defendants convicted.
- Corporate defendant (McInerney Enterprises Pty Ltd): base fine of $400,000, reduced by 25% for guilty plea to $300,000, further reduced under s 6 of the Fines Act to $150,000 payable.
- Individual defendant (Taylor McInerney): base fine of $1,000, reduced by 25% for guilty plea to $750, further reduced under s 6 of the Fines Act to $375 payable.
- 50% of each fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Both defendants to pay the prosecutor's agreed costs of $30,000 exclusive of GST pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A guilty plea in WHS prosecutions attracted a 25% discount in this case, consistent with the court's assessment of the utility of the plea to the administration of justice.
- Under s 6 of the Fines Act 1996 (NSW), a sentencing court retains a discretion to reduce the fine actually payable below the penalty it determines to be otherwise appropriate, and capacity to pay is a relevant consideration in exercising that discretion.
- The District Court applied the Nash v Silver City Drilling principle that a fine sized for a large corporation may be disproportionately crushing for a small operator, and this distinction can significantly affect the final amount ordered.
- Absent any site inspection, risk assessment, site-specific SWMS, or fall-protection measures, the failure to protect an untrained worker from foreseeable roof hazards (including skylights) was treated as a serious breach of the primary duty under s 19(1) of the WHS Act.
- The sentencing court assessed the corporate and individual defendants separately, arriving at markedly different penalty levels, reflecting that objective seriousness and personal mitigating factors are evaluated distinctly for each offender even where the offences arise from the same incident.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 27(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Latoudis v Casey (1990) 170 CLR 534
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- 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