Citation: SafeWork NSW v Built by EPS Pty Ltd [2025] NSWDC 372
Court: District Court of New South Wales
Date: 16 May 2025
Judge: Scotting DCJ
Background
Built by EPS Pty Ltd was the principal contractor engaged to construct a residential duplex in Woolooware. The company had in turn engaged a subcontractor, CNH Management Pty Ltd, to carry out formwork, steel fixing, and concreting work at the site. Paul Wahhab was a director of Built by EPS and served as site manager, with responsibility for subcontractor oversight and work health and safety at the site.
On 11 January 2022, during the Christmas shutdown period, CNH workers attended the site to strip formwork from the first-floor slab of the front duplex. The site contained two partially constructed swimming pool excavations, neither of which was covered, fenced, or fitted with handrails. Both pools were partially filled with stormwater and building waste, and uncapped steel reinforcement bars protruded upward from their edges. A worker, Mr Anthony, fell into one of the unguarded excavations and suffered serious injuries.
SafeWork NSW prosecuted Built by EPS on four charges under the Work Health and Safety Act 2011 (the Act) and the Work Health and Safety Regulation 2017 (the Regulation), and prosecuted Mr Wahhab on one charge under the Act. Both pleaded guilty.
Legal Issues
- Whether the objective seriousness of each offence justified the proposed penalties, having regard to the nature and foreseeability of the risk and the measures that were reasonably practicable
- The appropriate weight to give mitigating factors, including guilty pleas, remorse, absence of prior convictions, and good prospects of rehabilitation
- Whether aggravating factors, including the lack of a documented agreement with the subcontractor and Mr Wahhab's awareness of the unsafe conditions, affected the penalty
- Each offender's capacity to pay the fines proposed
- Whether any ancillary orders were appropriate in addition to monetary penalties
Decision
Scotting DCJ sentenced both offenders following their guilty pleas. The court assessed each of the four offences against Built by EPS and the single offence against Mr Wahhab for objective seriousness. The risk of a worker falling into an unguarded excavation containing stormwater and upward-pointing steel reinforcement bars was plainly foreseeable, and the measures required to address it were straightforward and inexpensive. There was no documented agreement between Built by EPS and CNH about the work, no Safe Work Method Statement tailored to site-specific risks, and no risk assessment for work in the vicinity of the open pools.
The court identified several aggravating features in the case against Built by EPS, including Mr Wahhab's awareness on the morning of the incident that CNH workers were on site, yet his failure to ensure safe conditions. Mitigating factors across both offenders included their guilty pleas, expressed remorse, absence of prior convictions, cooperation with the investigation, and good prospects of rehabilitation.
Each fine was then reduced by 25 percent to reflect the guilty pleas, consistent with the principles in R v Thomson and Houlton. The court found Built by EPS financially capable of paying appropriate fines based on its financial statements, and was satisfied Mr Wahhab held sufficient equity in his home to meet his fine.
In addition to the monetary penalty, the court made an order under s 241 of the Act requiring Mr Wahhab to complete a Certificate IV in Work Health and Safety by 15 May 2026, with evidence of completion or enrolment to be provided to the prosecutor and the court by 15 April 2026.
Orders Made
Built by EPS Pty Ltd:
- Convicted on all four charges
- Fined $4,500 (clause 40(a) offence: failure to maintain safe workplace layout)
- Fined $3,000 (clause 79(2) offence: failure to minimise fall risk)
- Fined $1,500 (clause 298(1)(b) offence: failure to secure workplace from unauthorised access)
- Fined $150,000 (s 32 offence: failure to comply with health and safety duty)
- Total fines: $159,000
Paul Wahhab:
- Convicted on the s 32 charge
- Fined $15,000
- Ordered to complete Certificate IV in Work Health and Safety by 15 May 2026
- Required to provide evidence of completion or progress to the prosecutor and the court by 15 April 2026
Both offenders:
- Ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fines to be paid to the prosecutor
Key Takeaways
- The District Court confirmed that, on a guilty plea in WHS prosecutions, a 25 percent reduction in the notional fine is appropriate, consistent with established sentencing principles.
- Under the Work Health and Safety Act 2011, an officer of a company who exercises day-to-day control over a site can be personally convicted under s 32 for failing to meet the duty imposed by s 27(1), even where the injured worker was employed by a subcontractor rather than directly by the company.
- Objective seriousness was assessed by reference to the foreseeability and gravity of the risk, the simplicity of available control measures, and the absence of basic site management documentation such as a tailored Safe Work Method Statement.
- Capacity to pay a fine is a relevant but not decisive factor: a court may still impose a substantial penalty where the offence is serious and general deterrence demands it.
- Section 241 of the Work Health and Safety Act 2011 empowers the court to order an individual offender to undertake specified training as part of the sentencing outcome, separate from and in addition to any monetary penalty.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(a), 27(1), 32, 241
- Work Health and Safety Regulation 2017 (NSW), cls 40(a), 79(2), 298(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 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 & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412