Citation: SafeWork NSW v Richard Crookes Constructions Pty Ltd [2024] NSWDC 584
Court: District Court of NSW
Date: 12 December 2024
Judge: Russell SC DCJ
Background
Richard Crookes Constructions Pty Ltd was the principal contractor for the construction of a 102-bed aged care facility at Belrose, NSW. It engaged a specialist subcontractor, G and Z Form Group Pty Ltd (GNZ), to carry out formwork and steel fixing, and a separate subcontractor, Prime Construction Solutions Pty Ltd, to operate the tower crane on site.
On 29 April 2020, a crane crew member and senior crane operator, Mr Nader Arnaout, stepped onto a penetration cover in the formwork deck that gave way beneath him. He fell approximately 2.9 metres and sustained serious injuries. The penetrations, which had been created to allow steel columns to be installed, were not adequately covered or marked, and exclusion zones had not been properly maintained in the area.
Richard Crookes pleaded guilty to failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers, including Mr Arnaout, to a risk of death or serious injury, contrary to s 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- What was the appropriate objective seriousness of the offence?
- What mitigating and aggravating factors were relevant to sentencing?
- What discount should be applied for the early guilty plea?
- What weight should be given to the relative culpability of Richard Crookes compared to GNZ?
- What fine, after all relevant factors, was appropriate in the circumstances?
Decision
The court assessed the objective seriousness of the offence as falling in the low to moderate range. The risk of falling through an unprotected penetration was a well-known hazard in construction, the defendant had identified fall risks in its revised Project Risk Report, and the formwork system in use (Skydeck) had introduced larger penetrations than the conventional system. Richard Crookes had failed to adequately monitor and verify that GNZ was covering penetrations securely, marking them properly, maintaining exclusion zones, and not directing workers onto incompletely inspected decks.
The court identified the following mitigating factors: the early guilty plea, the absence of prior relevant convictions, cooperation with the investigation, steps taken after the incident to improve safety systems, and the fact that GNZ's failures were more direct and significant than those of Richard Crookes. The defendant's culpability was characterised as a supervisory failure rather than a direct operational failure.
The court found that the need for general deterrence in work health and safety prosecutions remained significant, citing the importance of protecting workers from serious harm. No submission was made about the defendant's capacity to pay a reduced fine, so that issue did not arise. The court assessed the appropriate fine at $200,000 before applying a 25 per cent discount for the early guilty plea, resulting in a final fine of $150,000.
Orders Made
- Richard Crookes Constructions Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- Fined $150,000 (reflecting a 25% reduction from the assessed $200,000 for an early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Richard Crookes Constructions Pty Ltd ordered to pay the prosecutor's agreed costs of $75,000.
Key Takeaways
- A principal contractor's duty under s 19 of the WHS Act extends to adequately monitoring and verifying that subcontractors are complying with their own safety obligations, not merely imposing those obligations by contract.
- The District Court found Richard Crookes less culpable than the formwork subcontractor GNZ, whose operational failures were more direct, but this did not remove the principal contractor's independent liability.
- Objective seriousness was assessed as low to moderate, influenced by the nature of the supervisory failure, the foreseeability of the risk, and the seriousness of Mr Arnaout's injuries.
- An early guilty plea attracted a 25% discount on the fine, consistent with the applicable sentencing principles under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- General deterrence remains a weighty sentencing consideration in WHS prosecutions, even where other mitigating factors reduce the final penalty significantly below the statutory maximum.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), Pt 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
- SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465