Citation: SafeWork NSW v CNH Management Pty Ltd [2025] NSWDC 371
Court: District Court of New South Wales
Date: 16 May 2025
Judge: Scotting DCJ
Background
CNH Management Pty Ltd was a concreting contractor engaged to perform formwork, steel fixing, and concreting works at a residential duplex construction site in Woolooware. Carlos Fares Saad Hadidi was CNH's site manager, exercising substantial operational and financial control over the company. In January 2022, Mr Hadidi directed a small crew of workers, including a recently engaged casual labourer, Prasanth Anthony, to strip formwork from the first-floor slab of the front duplex.
The site was in a hazardous condition. Both duplex dwellings had partially constructed swimming pools with unguarded excavation voids, uncapped steel reinforcement bars protruding from the edges, and no edge protection on the first-floor slabs. Site security fencing was inadequate and permitted unauthorised access. Neither CNH nor Mr Hadidi had performed a site inspection, prepared a site-specific Safe Work Method Statement, or conducted a risk assessment before directing the workers to begin. Mr Anthony did not hold a White Card (the basic construction industry safety induction certificate), and CNH's workers had not been properly inducted to the site.
On 11 January 2022, Mr Anthony fell from the first-floor slab into the front duplex swimming pool excavation, sustaining serious injuries. Both CNH and Mr Hadidi were prosecuted by SafeWork NSW. Each pleaded guilty to an offence under section 32 of the Work Health and Safety Act 2011 for failing to comply with their respective health and safety duties, thereby exposing Mr Anthony to a risk of death or serious injury.
Legal Issues
- The appropriate level of objective seriousness to attach to each offence
- What weight to give to aggravating and mitigating factors, including the guilty pleas, absence of prior convictions, remorse, and cooperation
- Whether CNH's financial position warranted a reduction in the fine imposed on the company
- Whether Mr Hadidi's modest personal income warranted a reduction in his fine
- How the principles of parity applied as between the two offenders, and as between these offenders and any comparable cases
Decision
Scotting DCJ assessed the objective seriousness of both offences. The failures were multiple and compounding: no site inspection, no risk assessment, no Safe Work Method Statement, no edge protection, an unguarded and uncovered excavation void, and uncapped steel bars projecting from its edges. The court found the risk of serious injury or death was obvious and foreseeable, and the precautions required to eliminate or reduce that risk were straightforward and inexpensive.
On mitigating factors, both offenders pleaded guilty at an early stage, attracting a 25% discount on the otherwise appropriate fine. The court accepted that neither had prior convictions, that both had expressed genuine remorse, and that CNH had since taken steps to improve its safety systems. Mr Hadidi's cooperation and his personal financial circumstances were also treated as mitigating.
The court examined CNH's financial position in some depth and concluded the evidence of capacity to pay was inadequate. His Honour expressed suspicion that CNH was insolvent, but was not satisfied that its financial state warranted a reduction in the company's fine, noting the seriousness of the offences and the need for general deterrence. For Mr Hadidi personally, the court accepted that his income was modest and reduced the fine imposed on him accordingly.
On parity, Scotting DCJ found that CNH and Mr Hadidi bore greater culpability than other duty-holders involved in the broader incident, because CNH had immediate control of the work and of the systems under which the workers operated, and because CNH had known that Mr Anthony lacked a White Card and that its workers were not properly inducted.
Orders Made
- CNH Management Pty Ltd convicted and fined $225,000 (being a base fine of $300,000 reduced by 25% for the guilty plea).
- Carlos Fares Saad Hadidi convicted and fined $20,000 (being a base fine of $50,000 reduced by 25% for the guilty plea, with a further reduction reflecting his limited capacity to pay).
- Both offenders ordered 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 each fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A person conducting a business or undertaking (and an officer exercising operational control) may each face prosecution under section 32 of the Work Health and Safety Act 2011 arising from the same incident, with the officer's culpability assessed separately against the company's.
- Where multiple, elementary safety precautions were absent and the risk of serious harm was obvious and avoidable at low cost, the court will treat the objective seriousness of the offence as significant even where the maximum penalty far exceeds the fine ultimately imposed.
- The District Court declined to reduce CNH's fine on capacity-to-pay grounds, finding the evidence of financial hardship inadequate and the need for general deterrence too pressing, while accepting the same factor warranted relief for the individual officer given his modest and verifiable income.
- Parity between co-offenders was calibrated to reflect which party held direct operational control over the workers and the worksite systems, with CNH and Mr Hadidi assessed as more culpable than other persons with duties at the site.
- A 25% guilty plea discount applied to both offenders, consistent with the approach in R v Thomson and Houlton, reducing each base fine before any further adjustment for individual circumstances.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 27(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 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 and Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412