Citation: SafeWork NSW v Topdeck Scaffolding Pty Limited [2024] NSWDC 215
Court: District Court of New South Wales
Date: 14 June 2024
Judge: Russell SC DCJ
Background
A scaffolding contractor was engaged to erect perimeter scaffolding at a residential apartment block in Fairlight, NSW to enable window and eave replacement works. The contractor secured the scaffolding to the building's eastern elevation using only up to five wall ties, a number significantly below what the relevant guidance material and manufacturer's specifications required. The contractor did not undertake any assessment to determine how many ties were needed.
On 7 April 2021, the contractor dismantled the scaffolding along the southern elevation of the building. This left the eastern elevation scaffolding extending beyond the building's southern edge, with advertising signage and containment sheeting still attached. Two days later, on 9 April 2021, wind gusts caused the inadequately secured scaffolding to collapse, striking an adjacent building and damaging an apartment. The residents of that apartment were home at the time but fortunately were not physically injured.
The contractor, Topdeck Scaffolding Pty Limited, pleaded guilty to failing to comply with its duty as a person conducting a business or undertaking (PCBU) under s 19(2) of the Work Health and Safety Act 2011 (NSW), thereby exposing two residents to a risk of death or serious injury, contrary to s 32 of that Act.
Legal Issues
- What was the appropriate level of objective seriousness for the offence?
- What mitigating and aggravating factors applied to the sentencing?
- What discount should be applied for an early guilty plea?
- Whether Topdeck's financial capacity warranted a reduction in the fine imposed?
- What was the appropriate fine, having regard to the maximum penalty of $1,766,130?
Decision
The court assessed the objective seriousness of the offence as falling in the lower range of the mid-range of objective seriousness. The risk materialised and the scaffolding collapse caused property damage, but no physical injury occurred. The court noted that Topdeck had failed to conduct any risk assessment to determine adequate wall ties, had not engaged a competent engineer, had not developed a site-specific Safe Work Method Statement, and had allowed a supervisor to operate under a cancelled licence.
Several mitigating factors were identified. Topdeck had no prior WHS convictions, cooperated fully with the prosecutor, provided documents promptly, and expressed genuine remorse. The court also noted the company's small, family-owned character and modest profitability. The contractor had prudently set aside $100,000 in anticipation of the fine.
On capacity to pay, the court acknowledged Topdeck's modest size but declined to reduce the fine on that basis. The company had no bank borrowings and expected to return a profit. The court drew on the principle from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 that questions of specific deterrence must account for the size and scope of the offender's operations, and that a substantial fine may still be warranted by the seriousness of the offence and general deterrence.
An early guilty plea attracted a 25% discount. The court set the base fine at $200,000, reduced to $150,000 after that discount.
Orders Made
- Topdeck Scaffolding Pty Limited convicted.
- Topdeck Scaffolding Pty Limited ordered to pay a fine of $150,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- Topdeck Scaffolding Pty Limited ordered to pay the prosecutor's costs.
Key Takeaways
- A PCBU's failure to conduct any risk assessment for the number of wall ties required to secure scaffolding, particularly where containment sheeting and advertising signage were attached, was treated as a significant indicator of objective seriousness under the Work Health and Safety Act 2011 (NSW).
- Where no physical injuries resulted from a scaffolding collapse, the District Court placed the offence in the lower range of the mid-range of objective seriousness, reflecting that the risk nonetheless materialised and caused property damage.
- Under s 6 of the Fines Act 1996 (NSW), an offender's capacity to pay is relevant but not decisive; a substantial fine may still be warranted by the gravity of the offence and the need for general deterrence, even where the offender is a small business.
- An early guilty plea, full cooperation with the regulator, no prior WHS history, and genuine remorse each operated as mitigating factors, collectively producing a 25% discount from the base fine.
- Allowing a supervisor whose High Risk Work licence had been cancelled to oversee scaffolding works was identified as an aggravating circumstance relevant to the sentencing assessment.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155
- Work Health and Safety Regulation 2017 (NSW), cl 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432