Citation: SafeWork NSW v 21st Century Building Services Pty Ltd [2024] NSWDC 508
Court: District Court of New South Wales
Date: 31 October 2024
Judge: Russell SC DCJ
Background
A scaffolding contractor was engaged by the principal contractor on a demolition site in Gosford to supply, install and dismantle perimeter scaffolding and hoarding around a block of nine commercial premises. The scaffolding was installed in late July 2020 and was intended to contain demolition activity and prevent materials from falling onto a public street. On 19 August 2020, a gust of wind caused the scaffold to collapse.
The collapse exposed seven workers on the site to a risk of death or serious injury, though none sustained physical injury. A member of the public who happened to be walking along Mann Street, the main street of Gosford, suffered minor injuries when the scaffold fell.
SafeWork NSW prosecuted the scaffolding contractor across two sets of District Court proceedings. Each proceeding charged the contractor with failing to comply with its work health and safety duty under the Work Health and Safety Act 2011 (NSW) (WHS Act), thereby exposing persons to a risk of death or serious injury.
Legal Issues
- Whether the contractor breached its duty under s 19(2) of the WHS Act by failing to take reasonably practicable measures to ensure the health and safety of workers and members of the public.
- What objective seriousness should be attributed to the offending conduct.
- What weight to give to mitigating factors, including the early guilty plea and the contractor's capacity to pay.
- How the totality principle should apply when sentencing for two related but distinct offences arising from the same incident.
- What fine was appropriate for each offence, and whether a discount for the guilty plea should apply.
Decision
The contractor pleaded guilty to both charges. The court accepted that the contractor had failed to take one or more reasonably practicable measures to address the risk of scaffold collapse. Those failures included not ensuring the scaffold was adequately tied to supporting structures at all times, not maintaining secondary stabilisation measures as demolition of the structures advanced, not having a competent licence-holder regularly inspect the ties, and not implementing a process to prevent unauthorised persons (specifically the principal contractor's workers) from removing ties or altering the scaffold.
The court assessed the appropriate fine for each offence individually before applying the totality principle. Both offences arose from the same factual circumstances and the same course of conduct, which required the court to consider whether the aggregate of the two fines was proportionate to the overall criminality of the behaviour.
Applying the totality principle, the court reduced the fine for the offence involving the on-site workers from $240,000 to $60,000, while maintaining the $240,000 figure for the offence involving the injured member of the public. Each fine was then reduced by 25% to reflect the early guilty plea, resulting in final fines of $45,000 and $180,000 respectively.
The maximum penalty for each offence was $1,766,130. The fines ultimately imposed therefore represented a modest fraction of the maximum, reflecting the application of the totality principle, the early guilty plea, and other relevant sentencing factors.
Orders Made
District Court Proceedings 2022/245096 (workers on site):
- 21st Century Building Services Pty Ltd convicted.
- Fine of $45,000 imposed (reflecting a reduction from $60,000 for the early guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Contractor to pay the prosecutor's costs.
District Court Proceedings 2022/245121 (injured member of the public):
- 21st Century Building Services Pty Ltd convicted.
- Fine of $180,000 imposed (reflecting a reduction from $240,000 for the early guilty plea).
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Contractor to pay the prosecutor's costs.
Key Takeaways
- A scaffolding contractor's duty under s 19(2) of the WHS Act extends to members of the public in adjacent streets, not only to workers on the site. Two separate charges were available here because the risk was realised in relation to two distinct groups of persons.
- The totality principle applies to fines, not just custodial sentences. Where multiple WHS charges arise from the same incident and the same course of conduct, a court must assess each fine individually and then consider whether the aggregate is proportionate to the overall criminality.
- An early guilty plea attracted a 25% reduction in each fine, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The presence of a member of the public who actually sustained injury, even minor injury, was treated as a distinguishing factor. The fine for the offence involving the injured pedestrian was left unreduced by the totality adjustment, while the fine for the workers' offence bore the brunt of that reduction.
- Failures attributed to the contractor included not only inadequate initial installation but also inadequate ongoing management of the scaffold, including the absence of systems to detect and respond to unauthorised interference by third parties on the site.
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
- 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
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- EPA v Barnes [2006] NSWCCA 246
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- 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
- Pearce v The Queen (1998) 194 CLR 610
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465