Citation: SafeWork NSW v Mennen Constructions Pty Ltd [2024] NSWDC 446
Court: District Court of New South Wales
Date: 25 September 2024
Judge: Scotting DCJ
Background
Mennen Constructions Pty Ltd was the principal contractor on a two-storey duplex construction at Fairfield. In September 2021, a subcontractor engaged for roofing works climbed onto the garage roof using an A-frame ladder to apply silicone sealant. While on the roof, he stepped on the fascia at the southern edge, which moved under his weight, causing him to fall over the edge and land on the concrete driveway of the neighbouring property.
The injured worker suffered a traumatic brain injury, including multiple intracranial haemorrhages, skull fractures, and spinal and chest fractures. He was hospitalised for nearly seven weeks and then transferred to a brain injury rehabilitation unit. As at November 2023, he had not returned to work and continued to experience significant memory loss.
SafeWork NSW prosecuted Mennen Constructions for failing, as a person conducting a business or undertaking, to ensure the health and safety of workers pursuant to section 19(1) of the Work Health and Safety Act 2011 (NSW). The offence carries a maximum fine of $1,782,579 (17,315 penalty units). The company pleaded guilty.
Legal Issues
- What was the appropriate level of objective seriousness of the offence?
- What aggravating and mitigating factors applied to sentencing?
- Whether the offender had demonstrated a reduced capacity to pay a fine, so as to warrant a reduction in the penalty on that basis.
- What discount was appropriate for the guilty plea?
- What was the appropriate final penalty?
Decision
Scotting DCJ found the offence to be of considerable objective seriousness. The offender had failed to conduct any risk assessment or job safety analysis before roofing work commenced on the garage roof. No fall protection was in place: no guardrails, no temporary scaffolding, no edge protection, and no confirmation that the subcontractor had its own fall prevention equipment. Although a Safe Work Method Statement (SWMS) prepared by the subcontractor identified working at heights as a hazard and listed a safety harness and safety rail as controls, the offender had not consulted on the SWMS, had not required its use, and had not directed workers to cease when no fall protection was in place.
The site supervisor, upon arriving at the site that morning, observed the worker using an A-frame ladder but did not intervene or engage further with him. The director of the company was present at the site when work began. A toolbox talk held the preceding week had covered working at heights, but it was conducted in English, and the injured worker spoke only basic English.
In mitigation, the court accepted that the company had no prior convictions, had cooperated with the SafeWork NSW investigation, had taken corrective steps after the incident (including installing handrails and temporary scaffolding), and had expressed genuine remorse through its director. There were no significant aggravating factors beyond those inherent in the offence itself. The court assessed these matters alongside the need for both specific and general deterrence, which it described as particularly important in work health and safety prosecutions.
On capacity to pay, the court noted that the offender is a small business with an estimated turnover of approximately $1,000,000 per year. However, the company had not put on any evidence of its actual financial position. The court was not satisfied the offender had discharged the evidentiary onus of demonstrating a reduced capacity to pay. Applying a 25% discount for the guilty plea, the court reduced the base fine of $240,000 to a final penalty of $180,000.
Orders Made
- Mennen Constructions Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $180,000 imposed (reflecting a 25% guilty plea discount applied to a base fine of $240,000).
- The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A principal contractor's failure to conduct any risk assessment, implement fall protection, or supervise subcontractors undertaking work at height was found to be objectively serious conduct under the Work Health and Safety Act 2011 (NSW), even where a subcontractor had prepared its own SWMS.
- The District Court confirmed that where an offender seeks a reduction in fine on grounds of limited capacity to pay, the offender bears the evidentiary onus of satisfying the court that such a reduction is warranted. Failing to adduce financial evidence means that onus goes unmet.
- General and specific deterrence carry significant weight in Work Health and Safety Act sentencing, and a substantial fine may be imposed even where genuine remorse and post-incident remediation are established.
- Cooperation with a SafeWork NSW investigation, absence of prior convictions, and genuine corrective action after an incident are recognised mitigating factors, but they do not displace the primacy of deterrence in this sentencing context.
- A 25% discount applied to the base fine for a guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski, reflecting both utilitarian value and remorse.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383