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District Court 20 February 2024

SafeWork NSW v Aland B & W Pty Ltd

[2024] NSWDC 33

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY SENTENCE

Citation: SafeWork NSW v Aland B & W Pty Ltd [2024] NSWDC 33
Court: District Court of New South Wales
Date: 20 February 2024
Judge: Strathdee DCJ

Background

The defendant, a construction company acting as principal contractor on a residential development in Edmondson Park, NSW, was prosecuted under the Work Health and Safety Act 2011 (NSW) (WHS Act) following a serious workplace injury. On 24 August 2020, a bundle of steel reinforcement bars weighing between two and four tonnes was being lifted by crane when the load swung and struck a 58-year-old formwork labourer, Mohammad Hoque, pinning him against an adjacent formwork structure.

Mr Hoque had been working in a laneway on the site, installing a wall system, at the same time the crane lift was being conducted nearby. The dogman directing the lift did not observe Mr Hoque in the area before commencing the operation. The load struck Mr Hoque on the right side of his torso, suspending him against the formwork for up to 60 seconds before co-workers were able to pull him down.

The aftermath of the incident added to the gravity of the case. The site supervisor initially formed the view that Mr Hoque had not been seriously injured, directed work to resume, and the formwork deck against which Mr Hoque had been pinned was rebuilt before police arrived. A second ambulance call was not placed until approximately 9:05am, nearly 90 minutes after the incident. SafeWork NSW was not notified until 11:16am, with the reported time of the incident being recorded as approximately 9:00am.

  • Whether the defendant, as a person conducting a business or undertaking (PCBU), failed to comply with its duty under s 19(1) of the WHS Act to ensure the health and safety of workers so far as reasonably practicable, thereby exposing Mr Hoque to a risk of serious injury contrary to s 32 of the WHS Act
  • The appropriate objective seriousness of the offence for sentencing purposes
  • What mitigating and aggravating factors applied
  • The appropriate discount for the utilitarian value of the guilty plea
  • Whether the prosecutor's costs should be awarded and in what amount

Decision

The defendant pleaded guilty to the charge on 10 July 2023. The maximum penalty for the offence is $1,766,130. Strathdee DCJ assessed the objective seriousness of the offence as falling in the low to mid range, noting that the risk was foreseeable and preventable. The failure was one of inadequate coordination and communication between the various contractors operating simultaneously in the same area of the site, contrary to the obligations under s 46 of the WHS Act and the relevant Code of Practice for construction work.

Several aggravating features were identified. The post-incident conduct was of particular concern: the site supervisor's decision to resume work after the incident, the rebuilding of the formwork deck before police arrived, and the delayed and inaccurate notification to SafeWork NSW all contributed negatively to the sentencing assessment. Mr Hoque sustained significant injuries, including multiple rib fractures, a torn rotator cuff requiring surgery, haematuria, and lower back injury, and remained unfit for work in any capacity as at May 2021.

In mitigation, the court accepted that the defendant had no prior WHS convictions, had cooperated with the investigation, and had taken extensive remedial steps following the incident. These included the introduction of a digital site management platform (SiteOnSite) which the court found demonstrated a genuine commitment to improving WHS systems. The court accepted the defendant's remorse, contrition, and strong prospects of rehabilitation.

A 25% discount was applied to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. The court also noted that it had taken into account the defendant's liability for the prosecutor's agreed costs of $27,000 when determining the monetary penalty.

Orders Made

  • The defendant is convicted.
  • A fine of $225,000 is imposed (being $300,000 reduced by 25% for the guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs in the agreed sum of $27,000, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • A PCBU's duty under s 19(1) of the WHS Act extends to ensuring adequate coordination between contractors operating simultaneously in the same area of a worksite, including crane operators and workers on foot in adjacent zones.
  • Post-incident conduct, including resuming work before the scene was preserved, rebuilding structures before police arrived, and providing inaccurate or delayed notifications to the regulator, can constitute a significant aggravating factor in WHS sentencing.
  • The District Court confirmed that costs awarded against a defendant in WHS prosecutions are compensatory rather than punitive, and that both the prosecutor's costs and the defendant's own costs flowing from the breach are relevant considerations when setting the monetary penalty.
  • Demonstrable and substantive post-offence remediation, including the adoption of new safety management systems, can support findings of remorse, contrition, and strong prospects of rehabilitation, all of which carry weight as mitigating factors.
  • Under the sentencing framework applied, a 25% discount for the utilitarian value of a guilty plea entered at an early stage represents the maximum available discount in proceedings of this kind.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Latoudis v Casey (1990) 170 CLR 534
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Orbit Drilling v The Queen (2012) 35 VR 399