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
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,
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.