SafeWork NSW v Ceerose Pty Ltd - [2016] NSWDC 184

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Ceerose Pty Ltd [2016] NSWDC 184
Hearing dates: 15 July 2016
Date of orders: 24 August 2016
Decision date: 24 August 2016
Jurisdiction: Criminal
Before: KEARNS DCJ
Decision:
The defendant is convicted and fined the sum of $300,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs in an agreed sum of $60,000.

Catchwords: Work Health and Safety Act 2011 ss 19(1), 32 – plea of guilty – unsecured skylight fell 11 metres onto worker – fatal injuries – defendant was head contractor on building site where worker was injured – whether risk was reasonably foreseeable – foreseeability of consequences of risk – measures readily available to eliminate the risk – whether the short period of time the risk was in place lessens the culpability of the defendant – whether the defendant’s culpability may be limited by reference to the higher culpability of others – whether the defendant can rely on the contractual obligations of a third party in diminishment of its culpability – high risk industry – mid-range objective seriousness – specific and general deterrence – improved safety systems post-incident – one prior conviction – regret and remorse of defendant – plea of guilty entered at first available opportunity – good corporate standing of defendant – cooperating with regulator – allowance for defendant’s liability to pay prosecutor’s costs – use of victim impact statements
Legislation Cited: Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73
Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
WorkCover Authority of New South Wales v JMW Developments Pty Limited [2010] NSWDC 259
TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1
R v Turnbull [2016] NSWSC 847
Category: Sentence
Parties: SafeWork New South Wales (prosecutor)
Ceerose Pty Ltd (defendant)
Representation: Counsel:
Mr J Agius SC with Mr B Docking, instructed by SafeWork NSW, appeared for the prosecutor
Mr P Ginters, instructed by Moray & Agnew, appeared for the defendant

File Number(s): 2015/84866

Judgment

THE CHARGE AND PLEA

Ceerose Pty Ltd is charged that on 13 April 2013, contrary to s 32 of the Work Health and Safety Act2011 (the Act), it breached a duty imposed on it by s 19(1). Ceerose has pleaded guilty.

SOME PRELIMINARY MATTERS

DSF Constructions Pty Ltd has also been charged. The proceedings against it were listed for hearing together with the proceedings against Ceerose. Mr Ginters appeared for Ceerose and Mr Rooney appeared for DSF. Both Ceerose and DSF sought that the hearings be heard sequentially, rather than concurrently. This was not opposed by Mr Agius QC, who appeared with Mr Docking, for the Prosecutor. After some discussion, it was decided to proceed with the hearing of the matters sequentially.
The evidence of the Prosecutor in these proceedings consisted of an agreed tender bundle (Exhibit PX 1), a judgment of the Industrial Relations Commission in…

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

Case: [2016] NSWDC 184
Decision Date: 24 August 2016

CaseChat Overview and Summary

SafeWork NSW prosecuted Ceerose Pty Ltd for breaches of the Work Health and Safety Act 2011, following the death of a worker who was fatally injured when a skylight fell from a height of 11 metres. The Central Administration Tribunal was tasked with determining the culpability of Ceerose, the head contractor on the site, in relation to the incident. The primary legal issues involved whether the risk of the skylight falling was reasonably foreseeable, the foreseeability of the consequences of the risk, the measures available to eliminate the risk, and the extent to which Ceerose's culpability could be mitigated by various factors.

The tribunal considered the foreseeability of the risk and concluded that Ceerose, as the head contractor, should have been aware of the dangers posed by the unsecured skylight. It was found that measures were readily available to secure the skylight, which would have prevented the incident. The tribunal also noted that the short period the risk was present and the higher culpability of others involved did not significantly lessen Ceerose's responsibility. Furthermore, Ceerose's reliance on contractual obligations with a third party did not diminish its culpability. The tribunal emphasised the importance of high safety standards in the industry, the mid-range objective seriousness of the offence, and the need for specific and general deterrence.

After weighing all factors, including the defendant's plea of guilty, regret, and cooperation with the regulator, the tribunal found Ceerose guilty and imposed a fine of $300,000, with half to be paid to the prosecutor. Additionally, Ceerose was ordered to pay the prosecutor's costs amounting to $60,000. The tribunal also allowed for the use of victim impact statements in its consideration of the penalty.

Orders

Orders of the court

The defendant is convicted and fined the sum of $300,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs in an agreed sum of $60,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Ceerose Pty Ltd [2016] NSWDC 184
Hearing dates:	15 July 2016
Date of orders:	24 August 2016
Decision date:	24 August 2016
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant is convicted and fined the sum of $300,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs in an agreed sum of $60,000.
Catchwords:	Work Health and Safety Act 2011 ss 19(1), 32 – plea of guilty – unsecured skylight fell 11 metres onto worker – fatal injuries – defendant was head contractor on building site where worker was injured – whether risk was reasonably foreseeable – foreseeability of consequences of risk – measures readily available to eliminate the risk – whether the short period of time the risk was in place lessens the culpability of the defendant – whether the defendant’s culpability may be limited by reference to the higher culpability of others – whether the defendant can rely on the contractual obligations of a third party in diminishment of its culpability – high risk industry – mid-range objective seriousness – specific and general deterrence – improved safety systems post-incident – one prior conviction – regret and remorse of defendant – plea of guilty entered at first available opportunity – good corporate standing of defendant – cooperating with regulator – allowance for defendant’s liability to pay prosecutor’s costs – use of victim impact statements
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 WorkCover Authority of New South Wales v JMW Developments Pty Limited [2010] NSWDC 259 TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1 R v Turnbull [2016] NSWSC 847
Category:	Sentence
Parties:	SafeWork New South Wales (prosecutor) Ceerose Pty Ltd (defendant)
Representation:	Counsel: Mr J Agius SC with Mr B Docking, instructed by SafeWork NSW, appeared for the prosecutor Mr P Ginters, instructed by Moray & Agnew, appeared for the defendant
File Number(s):	2015/84866