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District Court 1 May 2026

SafeWork NSW v LiveBetter Services Limited

[2026] NSWDC 117

Public order & justice offences
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY

Citation: [2026] NSWDC 117
Court: District Court of New South Wales
Date: 1 May 2026
Judge(s): Strathdee DCJ

Background

LiveBetter Services Limited, a not-for-profit community service organisation and registered NDIS provider, pleaded guilty to a charge under s 32 of the Work Health and Safety Act 2011 (NSW). The charge arose from the death of a 28-year-old NDIS participant, Kyah Lucas, who suffered fatal burns while being bathed by two disability support workers (DSWs) at her family home in Orange, NSW on 2 February 2022.

Ms Lucas had Cornelia de Lange syndrome, a profound intellectual disability, was non-verbal, unable to independently mobilise or communicate, and had difficulty regulating her body temperature. She had been a client of LiveBetter since 2009. On the day of the incident, a hot water temperature control panel was set to 60 degrees Celsius rather than the usual 40 to 42 degrees. One of the DSWs ran a bath and checked the water temperature only informally with a bare hand near the tap, failing to detect that the water was dangerously hot. Ms Lucas was lowered into the bath, sustained burns to approximately 35% of her body, and died in hospital five days later.

SafeWork NSW prosecuted LiveBetter as a person conducting a business or undertaking (PCBU) that failed to comply with its health and safety duty under s 19(2) of the WHS Act, thereby exposing an individual to a risk of death or serious injury. The maximum penalty for the offence was $1,782,579.

  • Whether the defendant's guilty plea, combined with the agreed facts, established a breach of its duty as a PCBU under s 19(2) of the WHS Act, constituting an offence under s 32 (Category 2: failure exposing an individual to a risk of death or serious injury).
  • The appropriate sentence, assessed by reference to the objective seriousness of the offence, aggravating and mitigating factors, totality considerations, the defendant's prospects of rehabilitation, and its capacity to pay a fine.
  • Whether proceedings in a different court against a different entity arising out of the same events (specifically, Federal Court proceedings brought by the NDIS Quality and Safeguards Commissioner against LiveBetter) should be considered in the sentencing exercise, including under the totality principle.
  • Whether the defendant should be ordered to pay the prosecutor's costs, and the relevance of capacity to pay in that assessment.

Decision

Strathdee DCJ convicted LiveBetter after its guilty plea. The Court found the offence was objectively serious. LiveBetter had extensive corporate knowledge of Ms Lucas's vulnerabilities, including her inability to communicate pain, her thin skin, and her difficulty regulating body temperature. Despite providing worker-supported bathing on 81 occasions, LiveBetter had failed to conduct any risk assessment specific to bathing, had no written policies or procedures for safe bathing, imposed no formal requirement to check water temperature (such as by thermometer), and did not require secondary verification by a second worker.

The Court noted systemic failings in training. LiveBetter provided no formal or documented training regarding safe bathing in the context of the participant's home environment, disabilities, or vulnerabilities. Training occurred informally through "buddy shifts," and one DSW had observed only a single bathing session before being expected to assist. Neither DSW had been trained in burns or scalding incident response. One DSW's first aid certificate had expired before the incident.

On the question of totality, the Court considered whether the Federal Court proceedings against LiveBetter brought by the NDIS Quality and Safeguards Commissioner (Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374) should bear on sentencing. While those proceedings involved a different prosecuting body, a different statutory regime, and were directed at a different entity (LiveBetter in its capacity as an NDIS provider rather than as a PCBU), the Court acknowledged they arose from the same set of events. The judgment addressed how the totality principle applies in such circumstances, consistent with authorities including Haynes v CI & D Manufacturing Pty Limited (No 2).

The Court also addressed capacity to pay a fine, noting LiveBetter's not-for-profit status and its financial position as established through affidavit evidence. On costs, the Court applied the principle from Latoudis v Casey that costs ordinarily follow the event in prosecutorial proceedings, and considered the onus on a defendant seeking to resist a costs order on capacity grounds.

Orders Made

  • LiveBetter Services Limited was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
  • A fine was imposed (the precise quantum is contained in the full, untruncated judgment).
  • The defendant was ordered to pay the prosecutor's costs (subject to any capacity-related adjustments detailed in the full judgment).

(Note: Because the judgment text provided was truncated, the specific quantum of the fine and any detailed costs orders could not be confirmed from the available extract.)

Key Takeaways

  • An NDIS participant's family home constitutes a "workplace" under s 8 of the Work Health and Safety Act 2011 (NSW) where a PCBU provides disability support services at that location, meaning the full range of WHS duties applies in that setting.
  • The District Court treated the absence of formal, documented risk assessments, written safe-work procedures, and competency-based training for a known high-risk activity (bathing a vulnerable, non-verbal person) as a significant indicator of the objective seriousness of the offence.
  • In sentencing LiveBetter, the Court engaged the totality principle by considering proceedings brought under a different statutory regime (the NDIS Quality and Safeguards framework), even though the prosecuting body and regulatory context differed from those under the WHS Act.
  • Not-for-profit status was relevant to a defendant PCBU's capacity to pay a fine but did not displace the application of penalty provisions under the WHS Act.
  • Informal "on-the-job" training through buddy shifts, without documented competency assessments or audits, was found insufficient to discharge a PCBU's duty in the context of high-risk personal care for a profoundly disabled individual.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 8, 19(2), 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122
- National Disability Insurance Scheme Act 2013 (Cth), s 73J

Key Cases:
- Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374
- Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Johnson v The Queen [2004] HCA 15