Citation: SafeWork NSW v State Asphalt Services Pty Ltd [2025] NSWDC 75
Court: District Court of New South Wales
Date: 21 March 2025
Judge: Strathdee DCJ
Background
The defendant, State Asphalt Services Pty Ltd, was the principal contractor for a road re-sheeting project at Railway Parade, Allawah. It formed part of a group of companies (the Kypreos Group) and held both managerial and on-site supervisory control over traffic management services, including protocols for workers on foot. The defendant engaged subcontractors for asphalt laying and haulage.
On 21 May 2021, a worker employed by one of those subcontractors was in an area of the site designated for truck clean-out. A bobcat hose burst, and a decision was made to repair it on site. Whilst the worker was conducting repairs, an unidentified person communicated that the truck was "good to go." Within approximately one minute, the truck moved forward and the worker was crushed and killed.
SafeWork NSW prosecuted the defendant for failing to comply with its primary duty of care under the Work Health and Safety Act 2011 (NSW), exposing workers to the risk of death or serious injury from being struck, crushed, or run over by moving plant. The defendant pleaded guilty to the charge as set out in an amended summons filed in court on 16 December 2024.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence?
- What discount, if any, should apply to reflect the utilty of the guilty plea?
- What weight should be given to mitigating factors, including the defendant's financial position, remorse, and post-incident remediation?
- Should the defendant be ordered to pay the prosecutor's costs?
Decision
Objective seriousness. The court assessed the gravity of the offending by reference to the nature of the failures rather than subjective factors personal to the defendant. Several concrete failures were identified: the Truck Clean Out area lacked consistent signage and was not nominated within the risk management system; the Safe Work Method Statements (SWMS) provided by subcontractors did not address supervision of workers without two-way radios, communication of a worker's presence to vehicle operators, or processes in the event of plant breakdown on site; and the defendant did not prevent repair work being carried out in that zone. The risk of serious injury or death from moving plant in an active road-works environment was plainly foreseeable, and readily available measures were not in place.
Instinctive synthesis. Following the approach confirmed in Markarian v The Queen and Muldrock v The Queen, the court conducted an instinctive synthesis of all relevant factors rather than applying any mechanical formula. The court treated objective seriousness as the primary consideration, with subjective matters playing a subsidiary role.
Mitigating factors and plea discount. The court accepted relevant mitigating factors, including evidence of remorse and steps taken after the incident. A 25% reduction was applied to reflect the guilty plea, consistent with the utilty of that plea under the principles in R v Thomson; R v Houlton. The court also took into account that the defendant would be liable for the prosecutor's costs when fixing the monetary penalty, particularly given evidence of a limited capacity to pay. Before applying the plea discount, the court assessed the appropriate base fine at $600,000, below the maximum of $1,766,130.
Costs. The court confirmed that costs orders in successful prosecutions are compensatory rather than punitive, following Latoudis v Casey. The normal rule favours an award of costs to a successful prosecutor, and no basis for departing from that rule was identified.
Orders Made
- The defendant is convicted.
- A fine of $600,000 was assessed as appropriate, reduced by 25% for the guilty plea, resulting in a fine of $450,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.
Key Takeaways
- Under the Work Health and Safety Act 2011 (NSW), a principal contractor's duty of care is non-delegable: requiring subcontractors to provide SWMS does not discharge that duty where those SWMS are not followed or adequately enforced on site.
- The District Court confirmed that objective seriousness is assessed solely by reference to the nature of the offending, not by reference to the defendant's personal circumstances, which remain a subsidiary consideration only.
- Foreseeable risks from moving plant in an active worksite, where practical and available control measures were absent or inadequate, will be treated as a significant aggravating feature when assessing objective seriousness.
- A 25% guilty plea discount was applied where the plea, while ultimately entered, reflected its utility in the proceedings at the time it was entered.
- The court may reduce an otherwise appropriate fine to account for a defendant's limited financial capacity and anticipated costs liability, provided the final penalty still adequately reflects objective seriousness and the need for general deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266