SafeWork NSW v Bermagui Constructions Pty Ltd

Case [2024] NSWDC 604


District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
Hearing dates: 17 December 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   Bermagui Constructions Pty Ltd is convicted.

(2)   The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Bermagui Constructions Pty Ltd to pay a fine of $225,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Bermagui Constructions Pty Ltd to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – failure to direct workers not to work on roof until safety measures implemented

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 33

Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291

Cases Cited:

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

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

SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

SafeWork NSW Code of Practice, Managing the Risk of Falls, August 2019

SafeWork NSW Factsheet,

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Details
AGLC
SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
Case
[2024] NSWDC 604
Decision Date

CaseChat Overview and Summary

SafeWork NSW prosecuted Bermagui Constructions Pty Ltd in relation to an incident where a worker fell from a height while conducting roofing work. The worker fell through the roof soffit, and the company had not implemented any fall prevention systems. Additionally, the worker lacked the necessary qualifications and experience to work at such heights. The company failed to direct its employees to avoid working on the roof until safety measures were put in place. The matter was heard in the Local Court of New South Wales.

The court had to decide the appropriate penalty for the company's breach of work health and safety laws. It considered the objective seriousness of the offence, the company's early plea of guilty as a mitigating factor, and the absence of any aggravating factors. The court also evaluated the need for general and specific deterrence and the company's capacity to pay an appropriate penalty. Additionally, the court examined the costs associated with the prosecution.

The court found that the company was guilty of the offence and determined that the appropriate fine was $300,000. However, it reduced the fine by 25% to reflect the early plea of guilty, resulting in a fine of $225,000. The court ordered that 50% of the fine be paid to the prosecutor and that the company also pay the prosecutor's costs. This decision emphasised the importance of workplace safety and the need for companies to take appropriate measures to protect their workers from harm.

Orders

Orders of the court

(1) Bermagui Constructions Pty Ltd is convicted.

(2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Bermagui Constructions Pty Ltd to pay a fine of $225,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5) Order Bermagui Constructions Pty Ltd to pay the prosecutor’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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