Citation: SafeWork NSW v Danrae Remedial Services Pty Ltd [2025] NSWDC 190
Court: District Court of New South Wales
Date: 27 May 2025
Judge: Scotting DCJ
Background
Danrae Remedial Services Pty Ltd is a small business providing waterproofing services, employing approximately 25 workers. On 12 November 2021, two of its workers were applying a highly flammable waterproofing adhesive (Ardex WA98) to a balcony at a townhouse in Botany. A heat gun, capable of reaching temperatures of up to 700 degrees Celsius, was left switched on near the work area to dry wet sections of the floor.
When one worker placed a roller back into a bucket of decanted adhesive, vapour from the adhesive ignited and a flash fire engulfed him, causing burns to his lower legs. He was hospitalised briefly, discharged the same day, recovered fully, and returned to work with the company, where he was subsequently promoted.
The company had a Safe Work Method Statement (SWMS) in place, but it was not consulted on the day, one worker had not been trained on it, and it failed to identify the heat gun as a potential ignition source or address the specific hazards of the adhesive. Following a trial, the company was convicted under section 32 of the Work Health and Safety Act 2011 (the Act). This judgment deals with the appropriate sentence.
Legal Issues
- What was the objective seriousness of the offence, given the nature of the risk, the harm caused, and the adequacy of the company's safety systems?
- What weight should be given to mitigating factors, including post-incident remediation, the company's financial position, remorse, absence of prior convictions, and prospects of rehabilitation?
- What fine was proportionate to the offence, bearing in mind the maximum penalty of $1,782,579?
- How should costs be allocated between the parties, given the trial outcome and the vacation of an earlier trial date?
Decision
Scotting DCJ assessed the objective seriousness of the offence as sitting in the low to moderate range. While the risk of serious injury or death from igniting flammable adhesive vapour was real and foreseeable, the actual injury was relatively limited in severity, and the worker made a full recovery. The court accepted that the company had some safety infrastructure in place, but the SWMS was materially deficient: it failed to name the adhesive, failed to identify the heat gun as an ignition source, and failed to reflect safety information that the company already possessed from its own attendance at an Ardex training course.
On mitigating factors, the court accepted the company's remorse as genuine, noting the unreserved apology offered through its sole director. The company had no prior convictions, and its post-incident response was prompt and comprehensive. It developed new training materials, updated digital safety checklists, created a specific SWMS for using the adhesive near the heat gun, and prohibited use of the adhesive in confined spaces. These steps supported a finding of good prospects of rehabilitation.
The court also considered the company's financial capacity. As a small business with modest revenues, the offender demonstrated a limited ability to pay a large fine without serious commercial harm. Balancing all of these factors against the need for general and specific deterrence, the court imposed a fine of $150,000, representing approximately 8.4% of the maximum penalty.
On costs, the court found that SafeWork NSW had largely succeeded in the prosecution and was entitled to a costs order in its favour. However, two particular allegations relating to the practicability of mechanical ventilation should have been withdrawn well before the hearing, as the prosecution's own expert evidence made those allegations untenable. The court also ordered the prosecutor to pay the costs thrown away by the vacation of the July 2024 trial date, which had been necessitated by the late service of expert evidence.
Orders Made
- Danrae Remedial Services Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- Fine of $150,000 imposed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The offender is to pay 90% of the prosecutor's costs of the proceedings, as agreed or assessed.
- The prosecutor is to pay the offender's costs thrown away by reason of the vacation of the trial date of 22 July 2024.
Key Takeaways
- A company's existing knowledge of a hazard, such as having attended a product training course identifying an ignition risk, can aggravate the seriousness of a failure to incorporate that risk into a SWMS or train workers accordingly.
- Under the Work Health and Safety Act 2011, a SWMS that does not identify a specific ignition source or address the particular properties of a hazardous substance may be treated as effectively inadequate, even if a document formally exists.
- Post-incident remediation that is prompt, comprehensive, and embedded into ongoing systems carries meaningful mitigating weight at sentencing, particularly when accompanied by credible evidence of remorse and a clean prior record.
- The District Court confirmed that costs orders in WHS prosecutions may be adjusted to reflect a prosecutor's failure to withdraw allegations that became clearly unsustainable on the evidence, even where the overall prosecution succeeded.
- A fine of $150,000 (approximately 8.4% of the maximum) was considered proportionate where objective seriousness was assessed as low to moderate, the financial capacity of a small business was limited, and significant remediation had occurred.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 32
- Work Health and Safety Regulation 2017 (NSW), cls 34-38, 51, 52, 291, 351, 355
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases:
- SafeWork NSW v Remedial Services Pty Ltd [2025] NSWDC 70 (the verdict judgment in this matter)
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Hili v The Queen (2010) 242 CLR 520
- Jahandideh v R [2014] NSWCCA 178
- R v Youkhana [2004] NSWCCA 412