Citation: SafeWork NSW v 2 Types Constructions Pty Ltd [2025] NSWDC 435
Court: District Court of New South Wales
Date: 29 October 2025
Judge: Russell SC DCJ
Background
A principal contractor engaged to manage the refurbishment of a school building was prosecuted under work health and safety legislation after a subcontractor's employee fell approximately four metres through an unprotected skylight onto a concrete floor below. The worker, a 72-year-old truck driver and general labourer employed by an asbestos removal subcontractor, had accessed the roof without authorisation, reportedly to search for lost keys. He suffered serious injuries including a fractured eye socket, broken wrists, and a broken nose, and was placed in an induced coma.
The principal contractor had a safety management plan in place for the site, but no covers or barriers had been installed over the three large plastic skylights on the roof. There were also no measures in place to prevent unauthorised access to the roof when active work was not occurring.
The principal contractor pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence was a fine of $1,782,579.
Legal Issues
- The appropriate level of objective seriousness of the offence, having regard to the nature and extent of the risk and the measures reasonably available to eliminate or minimise it
- The weight to be given to mitigating factors, including the early guilty plea, cooperation with the prosecution, and evidence of remorse
- Whether any aggravating factors applied
- The defendant's capacity to pay a fine
- The quantum of the fine, applying a 25% discount for the early plea
- Costs
Decision
The court found the offence carried moderate to significant objective seriousness. The risk of falling through an unprotected skylight was well known, guidance material from SafeWork NSW was readily available, and straightforward protective measures such as covering the skylights with plywood or erecting guardrails were both feasible and inexpensive. The site safety management plan acknowledged falls from heights as a hazard but the measures it contemplated were not implemented.
The court identified several failures: no adequate risk assessment for roofing work addressing the skylight hazard, no barriers restricting unauthorised roof access, no work-at-heights permits, and generic site inductions that did not address site-specific risks. The two Safe Work Method Statements provided by the subcontractor were reviewed by the principal contractor but neither addressed the risk of falls, and no feedback was provided.
On mitigating factors, the court accepted the early guilty plea, consistent cooperation with the prosecution, and evidence of remorse and contrition. A 25% discount was applied to reflect the timing and circumstances of the plea. No submission was made about capacity to pay, so that issue did not arise.
The court assessed the appropriate fine before discount at $360,000, reduced to $270,000 after the 25% guilty plea discount. Fifty per cent of the fine was directed to be paid to the prosecutor under the Fines Act 1996 (NSW), with the defendant also ordered to pay prosecution costs.
Orders Made
- 2 Types Constructions Pty Ltd convicted
- Fine of $270,000 imposed (reduced from a base fine of $360,000 by 25% for early guilty plea)
- 50% of the fine directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW)
- 2 Types Constructions Pty Ltd to pay the prosecutor's costs
Key Takeaways
- A principal contractor's duty under section 19 of the Work Health and Safety Act 2011 (NSW) extends to protecting workers from foreseeable risks created by site conditions, including where a worker accessed a hazardous area without authorisation and contrary to instructions.
- The District Court confirmed that the availability of straightforward, low-cost control measures, such as plywood covers over skylights and barriers at scaffold access points, weighs toward greater objective seriousness where those measures were not implemented.
- Reviewing a subcontractor's Safe Work Method Statements without providing feedback, and failing to ensure those statements addressed identified site hazards, was treated as a relevant failure by the principal contractor.
- A 25% discount for an early guilty plea was applied consistently with the requirements of section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting the timing of the plea and the circumstances in which the defendant indicated its intention to plead.
- Where a defendant makes no submission on capacity to pay, the court proceeds without reducing the fine on that basis, noting that a substantial fine may remain warranted by the seriousness of the offence and the need for general deterrence even where a defendant is a small operator.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 8, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465