Citation: SafeWork NSW v Laggner Constructions Pty Ltd [2024] NSWDC 204
Court: District Court of NSW
Date: 3 June 2024
Judge: Scotting DCJ
Background
The defendant is a small, family-run residential building company. In late 2021, it was engaged to construct an upper-floor extension to a home in Murrumbateman, NSW. As part of that work, the company's sole director created a 1.8m x 1.8m stairway void on the second level of the house, covering it with two unsecured plywood sheets that were not strong enough to bear a person's weight.
Several days later, the director met on-site with a painting subcontractor's manager to discuss upcoming painting works. The two men gave conflicting accounts to investigators: the director said he warned the manager about the void and instructed him to keep workers off the second level; the manager said no such warning was given. The following morning, a painter engaged by the subcontracting business made his way to the second floor to begin work from inside the house. He stepped on one of the plywood sheets, which gave way, and he fell approximately 2.7 metres to the ground floor below.
The painter sustained a left tibial plateau fracture and a T-12 burst fracture. SafeWork NSW prosecuted the building company under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to ensure the health and safety of workers, contrary to s 19(1), thereby exposing the painter to a risk of death or serious injury.
Legal Issues
- Whether the defendant's conduct established a contravention of ss 19(1) and 32 of the Work Health and Safety Act 2011 (NSW)
- The appropriate level of objective seriousness of the offence
- The weight to be given to aggravating and mitigating factors, including the defendant's guilty plea, remorse, prior good record, and prospects of rehabilitation
- Whether the defendant had a limited capacity to pay a fine, and how that capacity should bear on the penalty
- The appropriate quantum of the fine, including the applicable guilty-plea discount
Decision
The defendant pleaded guilty to the charge. The court accepted an Agreed Statement of Facts and proceeded to sentencing. The defendant's own Safe Work Method Statement had identified falls through voids as a high-risk hazard and specified control measures including secured void covers, barricades, signage, and no-go zones. None of those measures were implemented. The court found this gap between documented procedure and actual site practice to be a significant feature of objective seriousness.
The court accepted several mitigating factors: the defendant had no prior convictions, was a good corporate citizen with more than 30 years in the industry, had expressed genuine remorse, and had enquired after the injured worker's welfare following the incident. Following the incident, the company took prompt corrective action, including installing a structurally adequate void cover, a timber handrail, and warning signage. The court also accepted that the offending arose from a failure in judgment rather than a deliberate disregard for safety.
On the question of rehabilitation, the court declined to find on the balance of probabilities that the defendant was unlikely to reoffend. The court reasoned that the construction industry involves inherent and ongoing risks, and that a finding of no likelihood of reoffending could not be made simply because the defendant had adopted a renewed focus on safety after the incident.
The court was satisfied that the defendant had demonstrated a limited capacity to pay, given that it is a small family business returning modest profits with no obvious source of funds to meet a large fine. Taking all factors together, including a 25% discount for the guilty plea reflecting both its utilitarian value and the remorse it indicated, the court imposed a fine of $75,000 (reduced from a starting point of $100,000).
Orders Made
- The defendant, Laggner Constructions Pty Ltd, is convicted.
- A fine of $75,000 is imposed (being $100,000 reduced by 25% for the guilty plea).
- The defendant is to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- A Safe Work Method Statement that correctly identifies a hazard and prescribes control measures provides no protection if those measures are not actually implemented on site. The District Court treated this gap as a central consideration in assessing objective seriousness.
- Where a defendant seeks a reduced fine on capacity-to-pay grounds, the evidentiary onus rests on the defendant to satisfy the court that a discretion to limit the fine should be exercised. Demonstrated limited capacity is relevant but not decisive, and a substantial fine may still be warranted.
- A guilty plea attracts a utilitarian discount, here set at 25%, and is also treated as indicative of remorse in line with established NSW sentencing principles from R v Thomson & Houlton and R v Borkowski.
- Operating in a high-risk industry and being subject to a framework of strict liability offences can weigh against a finding that an offender is unlikely to reoffend, even where genuine contrition and remediation are accepted.
- Under s 122(2) of the Fines Act 1996, the court directed that half the fine be paid to SafeWork NSW as the prosecuting authority.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412