Citation: SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
Court: District Court of New South Wales
Date: 11 July 2024
Judge: Russell SC DCJ
Background
The defendant is the owners corporation for an industrial strata complex in Berkeley, NSW. As the entity with management and control of the common property, including a large custom-built sliding metal perimeter gate approximately 8.5 metres long and over two metres high, it held duties under both the Strata Schemes Management Act 2015 (NSW) and the Work Health and Safety Act 2011 (NSW).
On 4 June 2020, a van collided with the gate at high speed. The collision bent the gate out of shape, partially pulled it from its track, disconnected it from its electric motor, and dislodged the stopper that prevented the gate from overtravelling past its guideposts. Emergency services attended and placed warning tape around the damaged structure. Despite this, the gate was not repaired, replaced, or taken out of service.
On 5 June 2020, site occupants performed makeshift repairs that allowed the gate to be pushed open manually. However, no adequate physical stopper was reinstated, meaning the gate could still overtravel past its guideposts. On 12 June 2020, a worker, Mr Jose Martins, arrived early to open the site as was his usual practice. While attempting to manually push the gate open, it overtravelled, fell from its rollers, and then fell onto him. He sustained fatal crush injuries. He was 64 years old and had been planning his retirement.
Legal Issues
- Whether the owners corporation, as a person with management and control of a workplace under s 20(2) of the WHS Act, failed to comply with its duty to ensure the workplace was without risks to health and safety so far as was reasonably practicable
- What penalty was appropriate, having regard to the objective seriousness of the offence, the mitigating and aggravating factors, the defendant's capacity to pay, and the principles of general and specific deterrence
- Whether a 25% discount on the fine was warranted for an early guilty plea
- The appropriate costs order
Decision
The owners corporation pleaded guilty to a category 2 offence under s 32 of the WHS Act, which carries a maximum fine of $1,731,500 for a body corporate. The court accepted that the defendant, as the entity with management and control of the common property, owed a duty under s 20(2) to ensure the site and its means of entry and exit were without risks to health and safety so far as was reasonably practicable.
The agreed facts established several measures that were reasonably practicable and ought to have been taken after the vehicle collision. These included conducting an immediate risk assessment, taking the gate out of service and posting warning signage, implementing physical barriers or exclusion zones, directing workers not to operate the gate, and arranging urgent repair or replacement by a competent person. None of these steps was taken in the eight days between the collision and Mr Martins' death.
Russell SC DCJ assessed the appropriate fine at $300,000 before applying any discount, reflecting the objective seriousness of the offence, the foreseeable and entirely preventable nature of the risk, and the fatal outcome. A 25% reduction was applied to account for the early guilty plea, consistent with the principles in Green v The Queen and the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also noted the significant personal impact on Mr Martins' family, including his daughter's victim impact statement describing ongoing grief and the loss of a central figure in her and her son's lives.
The final fine was set at $225,000. An order was also made directing that 50% of the fine be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW), a standard provision in WHS prosecutions.
Orders Made
- The Owners – Strata Plan No 93899 convicted on 5 July 2024
- Fine of $225,000 imposed (reflecting a 25% early guilty plea discount from a base fine of $300,000)
- 50% of the fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Defendant to pay the prosecutor's agreed costs of $40,000
Key Takeaways
- An owners corporation with management and control of common property at a strata industrial complex can be prosecuted under s 20(2) of the WHS Act as a person conducting a business or undertaking involving management or control of a workplace.
- Failing to act on an obvious and foreseeable structural hazard, such as a damaged heavy gate known to be operable without adequate safety mechanisms, for more than a week before a fatal incident will be treated as a serious breach for sentencing purposes, even without a finding of deliberate indifference.
- The District Court confirmed that the reasonably practicable measures available did not require complex engineering solutions: posting warning signs, directing workers not to operate the damaged gate, and arranging prompt professional repair were all sufficient and straightforward steps that were not taken.
- A 25% discount for an early guilty plea was applied consistently with established NSW sentencing principles, reducing the fine from $300,000 to $225,000 out of a maximum of $1,731,500.
- The total financial exposure for the defendant, combining the fine and agreed costs, was $265,000, with half the fine directed to the prosecutor under the Fines Act 1996 (NSW).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 20, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
- Strata Schemes Management Act 2015 (NSW), ss 8, 106
Cases
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51