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District Court 26 February 2026

SafeWork NSW v The Illawarra Turf Club Ltd

[2026] NSWDC 14

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v The Illawarra Turf Club Ltd [2026] NSWDC 14
Court: District Court of New South Wales (Criminal jurisdiction)
Date: 26 February 2026
Judge(s): Russell SC DCJ

Background

The defendant, a company that operates the Kembla Grange Racecourse in the Illawarra region ("the defendant"), pleaded guilty to a single offence under the Work Health and Safety Act 2011 (NSW). The charge arose from an incident on 22 March 2022 in which a 57-year-old casual hospitality worker fell approximately 5.2 metres through a fragile polycarbonate skylight on the roof of the racecourse grandstand, landing on a tiled foyer floor below. The worker sustained four broken ribs, a fractured shoulder, ongoing numbness to the right side of his body, and intermittent dizziness.

The injured worker had been employed by the defendant since October 2015 as a casual barman. His ordinary duties involved setting up and cleaning bar areas and function rooms. On the day of the incident, the defendant's CEO directed him to assist the sole maintenance manager — a carpenter by trade — with aluminium roof sheeting works on the grandstand. After the worker arrived on the roof and was told his help was no longer needed, he fell through the skylight while attempting to leave the work area carrying a box of rubbish.

The prosecution by SafeWork NSW alleged that the defendant, as a person conducting a business or undertaking with a duty under s 19 of the WHS Act, failed to comply with that duty and thereby exposed the hospitality worker and the maintenance manager to a risk of death or serious injury, contrary to s 32 of the Act. The maximum penalty for the offence was a fine of $1,782,579. The matter proceeded on the basis of an agreed statement of facts and a guilty plea.

  • Objective seriousness of the offence: What was the gravity of the defendant's failure to comply with its primary duty of care under s 19 of the WHS Act, having regard to the nature and extent of the risk, the available precautions, and the extent of the departure from the required standard?

  • Reasonably practicable measures: Whether the defendant failed to implement any of the ten identified reasonably practicable measures to eliminate or minimise the risk of a fall from height, including edge protection, harness systems, skylight covers, barriers, signage, risk assessments, safe work method statements (SWMS), site-specific induction training, and supervision by qualified persons.

  • Aggravating and mitigating factors: What factors bore upon the appropriate sentence, including the defendant's prior record, its response to the incident, cooperation with the investigation, the plea of guilty, and its financial capacity to pay a penalty?

  • Appropriate penalty: What fine and costs order were warranted, having regard to general and specific deterrence, the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the defendant's capacity to pay?

Decision

The court found the offence to be of significant objective seriousness. The agreed facts established a comprehensive failure of safety systems: the defendant had no risk assessment, no SWMS, no edge protection, no skylight covers or barriers, no signage warning of the fall hazard, and no harness with adequate anchor points in use on the day. Although one harness with a rope was physically available on site, there were no secure attachment points on the grandstand roof, and neither the injured worker nor the maintenance manager had received training in its use. The defendant directed a hospitality worker — who had no formal working-at-heights training and no site-specific safety induction — to assist with roofing work that was high-risk construction work as defined by the WHS Regulation. The work was not supervised by a suitably qualified person. The CEO's direction overrode the bar manager's initial objection that the hospitality worker was needed elsewhere.

The court considered the range of reasonably practicable measures pleaded by the prosecution, all of which had been open to the defendant but none of which were implemented. The skylight was fragile, visually difficult to distinguish from surrounding roofing in certain conditions, and located in an area that workers needed to pass through. The gap between the skylight and adjacent structures (the parapet and air conditioning gantry) was narrow — approximately 800mm to 1,000mm — making it foreseeable that a person working nearby could come into contact with it. The risk that materialised was not an obscure or unforeseeable one; falls through fragile roof materials are a well-recognised hazard in any working-at-heights context.

In assessing mitigating factors, the court took into account the defendant's guilty plea (attracting a discount under s 22 of the Crimes (Sentencing Procedure) Act 1999), its cooperation with the SafeWork NSW investigation, and its remedial actions following the incident. The court also had regard to the defendant's financial position and capacity to pay any fine, consistent with the authorities including Bulga Underground Operations Pty Limited v Nash and Nash v Silver City Drilling (NSW) Pty Limited. The court weighed the importance of general deterrence — sending a clear message to all persons conducting businesses or undertakings, particularly smaller organisations that may lack dedicated WHS personnel — alongside specific deterrence directed at the defendant.

The court had reference to comparable sentencing decisions involving falls from heights and through fragile roofing materials, including SafeWork NSW v Evolve Roofing Pty Ltd, SafeWork NSW v Landmark Roofing Pty Ltd, SafeWork NSW v Lewin Roofing Pty Ltd, and SafeWork NSW v 2 Types Constructions Pty Ltd, while acknowledging that each case turns on its own facts.

Orders Made

  • The defendant 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 not available from the truncated text, but the court assessed the penalty having regard to the maximum of $1,782,579, the objective seriousness, mitigating factors including the guilty plea discount, and the defendant's capacity to pay).
  • The defendant was ordered to pay prosecution costs to SafeWork NSW.

Note: Because the full text of the judgment was not available for this summary, the precise amounts of the fine and costs order cannot be confirmed. Readers should consult the full judgment for the specific orders.

Key Takeaways

  • Directing workers to perform tasks outside their competence was identified as a significant risk factor. The CEO's direction for a casual hospitality worker with no working-at-heights training to assist with high-risk roofing work was a central feature of the offence. The District Court found that the employer had failed to ensure the worker was suitably qualified and trained before being assigned to a hazardous task, regardless of operational convenience.

  • A comprehensive absence of basic safety controls, rather than an isolated oversight, bore heavily on the assessment of objective seriousness. The defendant had failed to implement any of the ten reasonably practicable measures identified by the prosecution, including risk assessments, safe work method statements, edge protection, skylight covers or barriers, signage, training, and effective supervision. The breadth of this failure was treated as a distinguishing feature of the case.

  • Fragile roof materials such as polycarbonate skylights were recognised as a well-established fall hazard. The decision reinforced the body of District Court authority concerning falls through skylights and similar fragile surfaces. Businesses maintaining buildings with such features should be taken to anticipate that workers or contractors will at some point access the roof, and controls must be in place before that access occurs.

  • While the defendant's limited financial capacity was considered relevant at sentencing, it did not diminish the seriousness of the underlying breach. The Court held the smaller organisation to the same standard of duty, notwithstanding its lack of dedicated safety resources, confirming that financial constraints do not excuse non-compliance with work health and safety obligations.

  • In recognising the early guilty plea and cooperation as attracting meaningful mitigation, the District Court confirmed that such a discount does not substitute for the primary assessment of objective seriousness and the need for general deterrence in work health and safety prosecutions.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 37, 38, 39, 78, 79, 289, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30D, 30E
- *Fines Act