Citation: SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
Court: District Court of NSW
Date: 20 December 2024
Judge: Russell SC DCJ
Background
Bermagui Constructions Pty Ltd was the principal contractor engaged by Georges River Council to carry out roof removal and replacement works at the Hurstville Aquatic Leisure Centre. Bermagui subcontracted the roof and ceiling works to Harbour City Roofing Pty Ltd, which in turn engaged a labour hire firm, HLH NSW Pty Ltd, to supply general labourers for the project.
On 9 February 2021, Mr Phillip Spillane, a labour hire worker assigned to Harbour City Roofing, fell through a roof soffit and landed approximately five metres below on concrete. He sustained serious injuries. Mr Spillane had no experience or formal training in working at heights, and no fall prevention system was in place on the section of roof where he was working.
Bermagui pleaded guilty to failing to comply with its duty as a person conducting a business or undertaking under section 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Spillane to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for a section 32 offence is a fine of $1,766,130.
Legal Issues
- What was the appropriate penalty for Bermagui's section 32 WHS Act offence, having regard to objective seriousness, mitigating and aggravating factors, and the principles of general and specific deterrence?
- What discount, if any, should be applied to reflect Bermagui's early guilty plea?
- What regard should be had to Bermagui's size and capacity to pay when setting the fine?
- Should the fine be apportioned partly to the prosecutor under the Fines Act 1996 (NSW)?
- What costs order was appropriate?
Decision
The court assessed the offence as serious. The risk of falls from heights in roofing work is well-documented, and the court opened its reasons with a detailed table of over 30 roofing fall cases heard in the District Court, cataloguing deaths and severe injuries. In this case, Bermagui failed to prevent access to an external roof section where fall prevention systems were absent, and failed to direct workers clearly not to access that area until appropriate safety measures were implemented. The injured worker had no qualifications or experience in working at height.
The court identified the reasonable and practicable measures that Bermagui could have taken: restricting physical access to the dangerous external roof section, or issuing clear instructions and supervision directing workers away from the area until safety measures were in place. Neither measure was taken.
The court set the appropriate base fine at $300,000. It then applied a 25% discount to reflect Bermagui's early guilty plea, consistent with the principles in Green v The Queen and the Crimes (Sentencing Procedure) Act 1999 (NSW). No submissions were made regarding capacity to pay, so that issue did not arise independently, though the court noted the size and scope of Bermagui's operations was a relevant consideration. The court also had regard to the fact that HLH NSW Pty Ltd, which faced a lesser section 33 charge for the same incident, received a fine of $82,500 after a 25% plea discount.
Orders Made
- Bermagui Constructions Pty Ltd convicted of the offence.
- Fined $225,000 (being a base fine of $300,000 reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Bermagui Constructions Pty Ltd to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that a principal contractor can be held liable under section 32 of the WHS Act where it fails to direct subcontractors' workers away from areas of a worksite that lack fall prevention measures, even where the injured worker is technically employed by a labour hire company.
- A 25% discount on the base fine applied following an early guilty plea, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where an offender does not raise capacity to pay as an issue, the court is not required to limit the fine on that basis, though the size and scope of the defendant's operations remains a relevant background consideration.
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that 50% of the fine be paid to SafeWork NSW as prosecutor, a mechanism that appears as a consistent feature across comparable WHS penalty decisions.
- The absence of any fall prevention system, combined with the assignment of an inexperienced and unqualified worker to a height-risk area, were significant factors bearing on the objective seriousness of the offence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 33
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540