Citation: SafeWork NSW v Demolition 1 Pty Limited [2025] NSWDC 76
Court: District Court of NSW
Date: 21 March 2025
Judge: Strathdee DCJ
Background
Demolition 1 Pty Limited was engaged as a subcontractor to carry out demolition works at a mixed-use development site in Shellharbour. The subcontract required the company to act as principal contractor and to comply with work health and safety legislation. Four workers were present on site on 5 August 2021.
During the morning, a site supervisor and excavator operator grew concerned that a four-metre-high masonry wall on the Addison Street boundary was destabilising, with a metal sign on top of the wall appearing to lean toward nearby power lines. The on-site supervisor instructed the excavator operator to bring the wall down using the excavator bucket, and directed two labourers to place temporary "use other footpath" signage on the footpath outside the site.
At around 8:38am, the remaining portion of the masonry wall collapsed forward uncontrollably onto the Addison Street footpath and into a travel lane as vehicles passed. The two labourers were standing on Addison Street at the time and had, at points during the demolition process, walked close to the wall as the excavator was engaging it. Approximately six vehicles passed the site during the demolition of the wall. No persons were injured. SafeWork NSW investigators found no scaffolding or scissor lift in use, despite workers having indicated those methods would be used to demolish the wall by hand.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking (PCBU), breached its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers, exposing them to a risk of death or serious injury (charged under s 32)
- Whether the defendant breached its duty under s 19(2) to ensure that other persons were not put at risk by work carried out as part of its business, contrary to s 33
- The appropriate sentence, having regard to objective seriousness, mitigating and aggravating factors, and the utility of the guilty plea
- Whether the defendant's limited financial capacity warranted a reduction in the fine under s 6 of the Fines Act 1996 (NSW)
- Whether the prosecutor was entitled to costs
Decision
The defendant pleaded guilty to both offences by amended summonses filed on 14 October 2024. The court proceeded directly to sentencing. The maximum penalty for the s 32 offence was $1,782,579.25 and for the s 33 offence, $594,021.50.
On objective seriousness, the court assessed the offending as being at a moderate level. The wall collapse exposed workers and the public to a real risk of death or serious injury, and the measures needed to prevent the risk were readily available and well understood within the industry. The defendant's Demolition Management Plan and Demolition Work Plan made no reference to the demolition of the masonry facade by hand, nor to scaffolding, a scissor lift, or hand tools, and no adequate traffic control measures were in place.
In assessing mitigating factors, the court noted the guilty plea, the absence of prior relevant convictions, evidence of remediation steps taken after the incident, and expressions of remorse. The court applied a 25% discount to reflect the utilitarian value of the guilty pleas. The court found there was evidence of limited financial capacity to pay and exercised its discretion under s 6 of the Fines Act 1996 to further reduce the fines by 50%, while noting that the objective seriousness of the offending and the need for general deterrence still required a meaningful penalty. The court also took into account that the defendant would bear the prosecutor's costs when fixing the monetary penalty.
Orders Made
Section 32 offence (failure to ensure worker health and safety, risk of death or serious injury):
- The defendant is convicted
- Base fine of $200,000, reduced by 25% for the guilty plea to $150,000, then further reduced by 50% under s 6 of the Fines Act 1996
- Fine payable: $75,000
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs, as agreed or assessed
Section 33 offence (failure to ensure health and safety of others not put at risk):
- The defendant is convicted
- Base fine of $40,000, reduced by 25% for the guilty plea to $30,000, then further reduced by 50% under s 6 of the Fines Act 1996
- Fine payable: $15,000
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs, as agreed or assessed
Key Takeaways
- The District Court confirmed that a PCBU's failure to have an adequate system of work for demolishing a structural facade, particularly where workers and the public were exposed to an uncontrolled collapse, can constitute a Category 2 WHS offence even where no physical injury results.
- A 25% guilty plea discount was applied, reflecting the utilitarian value of the plea in the context of these proceedings.
- Under s 6 of the Fines Act 1996, a court has a discretion to reduce a fine where a defendant demonstrates limited financial capacity, and the onus rests on the defendant to establish that incapacity; the court exercised that discretion here, applying a 50% reduction.
- Payment of the prosecutor's costs was treated as the ordinary outcome following a successful prosecution, with the court also factoring those costs into its assessment of the overall monetary burden on the defendant.
- Having safety plans in place is not sufficient if those plans do not address the specific tasks being performed; the absence of any reference to facade or masonry wall demolition methods in the defendant's Demolition Management Plan was a significant feature of the objective seriousness assessment.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 19(2), 31, 32, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122
- Occupational Health and Safety Regulations 2001 (NSW)
Cases:
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Latoudis v Casey (1990) 170 CLR 534
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310