Citation: SafeWork NSW v Page [2024] NSWDC 133
Court: District Court of New South Wales
Date: 24 April 2024
Judge: Scotting DCJ
Background
The offender was a licensed dogman (a person who directs crane operations and attaches loads) engaged by Alpha Crane Management Pty Ltd on a five-storey residential construction site at Edmondson Park, NSW. On 24 August 2020, he directed a crane operator to lift a steel reinforcement bar bundle weighing between two and four tonnes. He had not established a physical exclusion zone around the lift area, relying instead on verbal instructions to keep workers clear.
A form worker, Mohammad Hoque, was present in the laneway beneath the crane's operating area, having been instructed by his own supervisor to continue working there. The crane operator lost control of the load, which swung in a pendulum motion and struck Mr Hoque, pinning him against a formwork deck for up to 60 seconds. Mr Hoque sustained multiple rib fractures, a torn rotator cuff requiring surgery, a lower back injury, and internal bleeding. He was still unfit for work as at May 2021, and had only limited capacity for work from December 2023.
The offender pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with the health and safety duty under section 28(b), thereby exposing Mr Hoque to a risk of death or serious injury. The maximum penalty for the offence is a fine of 1,730 penalty units ($176,460).
Legal Issues
- What was the objective seriousness of the offending, including the role of the exclusion zone failure?
- What weight should be given to mitigating factors including the guilty plea, remorse, good character, and rehabilitation?
- What fine was appropriate having regard to the offender's limited capacity to pay under section 6 of the Fines Act 1996?
- What discount applied for the utilitarian value of the early guilty plea?
Decision
Scotting DCJ found the offending was objectively serious. An exclusion zone was required under the relevant Safe Work Method Statement that the offender had signed, yet he failed to establish one using barriers or signage. Instead, the site had relied on verbal instructions alone, a practice the court found inadequate. The absence of a proper exclusion zone created the foreseeable risk that workers could be present beneath or near the crane's operating area.
The court accepted a number of mitigating factors. The offender had no prior convictions, gave evidence in a forthright manner, and demonstrated genuine remorse. He had voluntarily ceased working as a dogman after the incident and completed further training as a crane operator. These matters supported good prospects of rehabilitation. The court also noted that the offender was not in a supervisory role and that there were systemic failures at site level, including a principal contractor who did not require an exclusion zone to be established.
On capacity to pay, the court was satisfied the offender had established a precarious financial position. His primary asset, a property purchased with his mother's contribution, was the subject of Supreme Court proceedings. He carried significant mortgage, tax, and personal debts, supported two adult children, and held savings of under $600 at the time of his affidavit. The court acknowledged some discretionary spending and assets, but accepted that his overall position warranted a reduction in the fine below what the seriousness of the offence would otherwise require. A 25% discount was applied for the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
The court imposed a fine of $6,000 (being $8,000 reduced by 25%) and ordered the offender to pay the prosecutor's agreed costs of $10,000.
Orders Made
- The offender was convicted.
- A fine of $6,000 was imposed (reduced from $8,000 by 25% for the guilty plea).
- The offender was ordered to pay the prosecutor's costs in the agreed sum of $10,000.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- A licensed dogman's failure to establish a physical exclusion zone using barriers and signage, in breach of a signed Safe Work Method Statement, constituted a serious breach of the duty under section 28(b) of the Work Health and Safety Act 2011, even where others at the site also contributed to the unsafe conditions.
- Capacity to pay is relevant but not decisive in WHS sentencing: the District Court reduced the fine below what objective seriousness would otherwise warrant, but only after the offender discharged the evidentiary onus of demonstrating a precarious financial position.
- Under the principles in R v Thomson & Houlton and R v Borkowski, a 25% discount was applied for the utilitarian value of a guilty plea, which also served as additional evidence of remorse.
- Systemic failures by others, including a principal contractor who did not enforce exclusion zone requirements, were treated as contextual matters affecting the offender's individual culpability, without diminishing the seriousness of the offence overall.
- Post-offence conduct, including ceasing to work in the relevant role and completing further training, supported a finding of good rehabilitation prospects and was taken into account as a mitigating factor in sentencing.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 28(b), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412