Citation: SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141
Court: District Court of New South Wales
Date: 1 May 2024
Judge: Russell SC DCJ
Background
Keks Projects Pty Ltd was the principal contractor on a residential construction site at Caringbah, NSW. On 23 September 2020, a concrete cutter employed by a subcontractor fell approximately 4.5 metres through temporary fencing into an excavation pit, sustaining a fractured ankle and several pelvic fractures. The injuries had lasting physical and psychological consequences for the worker, who described profound effects on his family, relationships, and sense of identity.
Keks had assumed the principal contractor role on 17 August 2020. It had identified problems with the temporary fencing installed by a previous contractor and carried out remediation works on the northern side of the excavation, but left the southern side unimproved. On the southern side, the fencing was secured only with plastic cable ties to metal star pickets, and a gap of approximately 0.4 metres existed between the barricade and the boundary fence.
SafeWork NSW prosecuted Keks for failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to section 32 of that Act. Keks pleaded guilty.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the early guilty plea?
- What was Keks's capacity to pay?
- Whether prosecution costs should be ordered, and in what amount.
Decision
The court assessed the objective seriousness of the offence by reference to the nature of the risk, the foreseeability of harm, the degree of departure from the standard required, and the gravity of the actual harm caused. The risk of falling into an excavation is well recognised in the construction industry. Keks had identified deficiencies in the southern-side fencing but chose to remediate only the northern side, leaving the incident area inadequately secured. The control measures in place, including signage, bins placed near the gap, and verbal warnings during induction, proved insufficient to prevent access to the exclusion zone.
The court acknowledged mitigating factors, including the early guilty plea, Keks's cooperation with the investigation, its lack of prior convictions, and evidence of subsequent improvements to its safety systems. The early plea of guilty attracted a 25% reduction from the otherwise appropriate fine.
Before arriving at the final figure, the court considered Keks's financial capacity to pay. The court determined that the appropriate base fine was $240,000, which was reduced by 25% to reflect the early guilty plea. Under section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor, SafeWork NSW.
Orders Made
- Keks Projects Pty Ltd convicted (conviction entered 18 April 2024).
- Keks Projects Pty Ltd ordered to pay a fine of $180,000 (being $240,000 reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- Keks Projects Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- A principal contractor's awareness of deficiencies in existing safety infrastructure, combined with selective remediation that left the incident area unaddressed, weighed significantly against the defendant in assessing objective seriousness.
- Under section 32 of the Work Health and Safety Act 2011 (NSW), the maximum penalty for a category 2 offence by a body corporate is $1,766,130; the fine imposed here ($180,000) reflected a base assessment of $240,000 reduced for an early guilty plea.
- Verbal induction warnings, signage, and physical obstructions such as bins did not, in this case, constitute reasonably practicable measures sufficient to eliminate or minimise the risk of a fall into an excavation.
- An early guilty plea attracted a 25% reduction from the base fine, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Section 122(2) of the Fines Act 1996 (NSW) permits the court to direct that a portion of a work health and safety fine be paid to the prosecuting authority; the District Court exercised that power by directing 50% of the fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 305
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465