Citation: SafeWork NSW v Scopeview Projects Pty Ltd; SafeWork NSW v Cameron Doueihi [2024] NSWDC 323
Court: District Court of New South Wales
Date: 7 August 2024
Judge: Russell SC DCJ
Background
In December 2020, a labourer was standing near a masonry brick wall on a residential construction site in North Bondi when the wall collapsed. He fell onto a protruding pile screw and sustained serious injuries. The site involved extensive demolition and excavation works, including the digging of trenches around old masonry walls. Two other walls had collapsed in the weeks before this incident.
Scopeview Projects Pty Ltd was the principal contractor engaged to carry out alterations and additions at the site. It had in turn engaged a subcontractor, Rahme Civil Pty Ltd, to perform the demolition and excavation work. Cameron Doueihi was the sole director of Scopeview, a working director responsible for all aspects of the business. No structural or geotechnical assessment of the walls had been obtained before work commenced, and no adequate risk assessment or safe work method statement had been developed to address the hazard of wall collapse.
SafeWork NSW prosecuted both Scopeview and Doueihi. Scopeview was charged under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act) with failing, as a person conducting a business or undertaking, to comply with its duty to ensure the health and safety of workers so far as reasonably practicable. Doueihi was charged with failing, as an officer of Scopeview, to exercise due diligence to ensure the company met that duty. Both pleaded guilty.
Legal Issues
- What penalty was appropriate for Scopeview's failure to comply with its primary duty under section 19(1) of the WHS Act, constituting a category 2 offence under section 32?
- What penalty was appropriate for Doueihi's failure to exercise due diligence as an officer of Scopeview under section 27(1), also a category 2 offence under section 32?
- What discount, if any, should apply to reflect the early guilty pleas?
- Whether each defendant should be ordered to pay prosecution costs, and how the fines should be allocated under the Fines Act 1996 (NSW).
Decision
The court assessed the objective seriousness of both offences in light of the foreseeable and significant risk of death or serious injury from unbraced masonry walls during demolition and excavation. The risk was well-known and the measures required to address it were readily available: engaging a structural engineer, obtaining a geotechnical assessment, conducting an adequate risk assessment, and implementing appropriate safe work method statements. The failure to take any of these steps was serious, particularly given that two prior wall collapses on the same site had put both defendants on notice.
The court identified mitigating factors for each defendant, including the early guilty pleas, the absence of prior convictions, expressions of remorse, and evidence of subsequent improvements to safety practices. The court also considered the impact of the offences on the injured worker, who provided a victim impact statement describing profound and ongoing physical and psychological harm, including PTSD, personality changes, and the loss of relationships.
For Scopeview, the court determined that a fine of $500,000 was appropriate before discount, reduced by 25 percent for the early guilty plea to $375,000. The maximum available penalty was $1,766,130. For Doueihi, the court set a base fine of $80,000, reduced by 25 percent to $60,000, against a maximum of $353,430. Both defendants were also ordered to pay prosecution costs.
Orders Made
Scopeview Projects Pty Ltd (Proceedings 2022/376706):
- Convicted on 23 July 2024
- Ordered to pay a fine of $375,000 (reduced from $500,000 by 25% for early guilty plea)
- Ordered that 50% of the fine be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Cameron Doueihi (Proceedings 2022/376686):
- Convicted on 23 July 2024
- Ordered to pay a fine of $60,000 (reduced from $80,000 by 25% for early guilty plea)
- Ordered that 50% of the fine be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Key Takeaways
- The District Court confirmed that a principal contractor's WHS duty extends to ensuring that subcontractors engaged to perform demolition and excavation work have carried out adequate risk assessments and obtained relevant engineering advice before commencing work.
- Where prior incidents of the same type have occurred on a site, those incidents are relevant to the assessment of objective seriousness, because they put the duty-holder on notice of the specific risk that later materialised.
- An officer's duty under section 27(1) of the WHS Act requires active steps, including directing that appropriate resources and assessments be obtained, verifying compliance by enquiry or site observation, and ensuring information about hazards flows between the company, subcontractors, and workers.
- A 25 percent reduction in penalty was applied for early guilty pleas, consistent with the sentencing principles applicable under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that 50 percent of each fine be paid to SafeWork NSW as prosecutor, reflecting the standard approach in WHS penalty proceedings.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 31, 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
- 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
- SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465