Citation: SafeWork NSW v Saunders Civilbuild Pty Ltd [2024] NSWDC 245
Court: District Court of New South Wales
Date: 27 June 2024
Judge: Russell SC DCJ
Background
Saunders Civilbuild Pty Ltd, a civil construction company engaged in bridge design and construction, was contracted by Gilgandra Shire Council to design and build a replacement bridge over the Castlereagh River near Gilgandra, NSW. On 12 August 2021, a carpenter employed by the company for approximately 12 years fell roughly five metres through a void in the bridge deck and into the riverbed below, sustaining serious injuries.
The fall occurred because steel infill panels, installed to cover the void between parallel concrete girders, were not adequately secured. Some girders had bowed during construction, meaning the pre-cut panels were too short to bear properly on both girders. Concerns about the bowing had been raised internally before the girders were placed, and the project manager had instructed workers to join extra panels together to bridge the gap. That instruction was not followed, and neither of the workers on site informed management that the proposed method had been abandoned.
Saunders pleaded guilty to a contravention of section 19 of the Work Health and Safety Act 2011 (NSW), namely failing to comply with its health and safety duty as a person conducting a business or undertaking, thereby exposing two workers to a risk of death or serious injury. The maximum penalty for such an offence under section 32 of the Act was $1,782,579.
Legal Issues
- What was the objective seriousness of the offence, given the circumstances of the breach and the risk created?
- What weight should be given to mitigating factors, including the guilty plea, the company's cooperation, and its prior compliance history?
- What fine was proportionate to the offence, consistent with the purposes of sentencing including general and specific deterrence?
- What reduction was appropriate to reflect the timing and quality of the guilty plea?
Decision
The court assessed the objective seriousness of the offence by reference to the nature and foreseeability of the risk, the degree of departure from the standard of reasonable practicability, and the severity of the consequences. The risk of a worker falling through an inadequately covered void during active bridge construction was plainly foreseeable. Reasonably practicable measures were available, including prohibiting work on the bridge deck until panels were confirmed as securely fixed, developing and documenting a safe system of work for panel installation, and training workers in that system.
The court identified several aggravating features: the risk was foreseeable and preventable, two workers were exposed (not merely one), and serious injury did in fact result. The court also took into account Mr Clarke's victim impact statement, which described lasting physical and psychological harm, including anxiety, depression, chronic pain, and significant disruption to his family life over the three years following the incident.
In mitigation, the court accepted that the guilty plea, while not entered at the first available opportunity, still warranted a discount. The company had no prior WHS convictions, had cooperated with the investigation, and had taken remedial steps after the incident. The court also considered the company's financial capacity to pay. These factors were balanced against the need for general deterrence, which carries particular weight in work health and safety prosecutions.
The court fixed the appropriate fine at $400,000 before discount, and then reduced that figure by 25% to reflect the guilty plea, arriving at a final fine of $300,000.
Orders Made
- Saunders Civilbuild Pty Ltd convicted on 20 June 2024.
- Saunders Civilbuild Pty Ltd ordered to pay a fine of $300,000.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Saunders Civilbuild Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that in WHS prosecutions, the foreseeability of a risk and the availability of straightforward preventive measures are central to assessing objective seriousness, even where a worker's own failure to follow instructions contributed to the circumstances.
- A 25% reduction in penalty applied where the guilty plea, though not entered at the earliest available opportunity, nonetheless demonstrated an acceptance of responsibility and avoided the costs of a contested hearing.
- Where two workers (rather than one) were exposed to the risk, the court treated that as a factor increasing the objective gravity of the single offence.
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that 50% of the fine be remitted to SafeWork NSW as prosecutor, a mechanism that applies in WHS penalty proceedings.
- Victim impact material describing ongoing psychological harm, family disruption, and difficulties navigating the workers compensation system was taken into account by the sentencing court as part of the overall assessment of an appropriate penalty.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- 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
- Meis v The Queen [2022] NSWCCA 118
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash 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
- SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165
- SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526
- SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13
- SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465