SafeWork NSW v DSF Constructions Pty Ltd - [2016] NSWDC 183

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
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 $225,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs as agreed or assessed.

Catchwords: Work Health and Safety Act 2011 ss 19(1), 32 – plea of guilty – unsecured skylight fell 11 metres onto worker – fatal injuries – defendant contracted by head contractor to design, manufacture, deliver and install structural steel works in accordance with engineering specifications and instructions from the head contractor – no barrier, sign or other measure in place to delineate exclusion zone at time of incident – foreseeability of risk – foreseeability of consequences of risk – measures readily available to reduce or eliminate risk – mid-range objective seriousness – relative culpability compared to others and whether this may be taken into account – high risk industry – specific and general deterrence – guilty plea entered at first available opportunity – genuine remorse and contrition – no prior convictions – cooperation with regulator – improved safety systems – use of victim impact statements
Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited: R v Turnbull [2016] NSWSC 847
Category: Sentence
Parties: SafeWork New South Wales (prosecutor)
DSF Constructions Pty Ltd (defendant)
Representation: Counsel:
Mr J Agius SC with Mr B Docking, instructed by SafeWork NSW, appeared for the prosecutor
Mr P Rooney, instructed by Kreisson Legal, appeared for the defendant

File Number(s): 2015/84860

Judgment

THE CHARGE AND THE PLEA

DSF Constructions Pty Limited is charged that on 13 April 2013, contrary to s 32 of the Work Health and Safety Act 2011 (the Act), it breached a duty imposed on it by s 19(1). DSF has pleaded guilty.

SOME PRELIMINARY MATTERS

This matter was listed for hearing together with proceedings against Ceerose Pty Ltd. Mr Rooney, who appeared for DSF, and Mr Ginters who appeared for Ceerose, both sought that the proceedings be heard sequentially rather than concurrently. Mr Agius QC, who appeared with Mr Docking, for the Prosecutor in both matters did not oppose this. The matters were heard sequentially and I have just delivered my sentence and reasons on sentence in the matter of Ceerose.
Though both cases had statements of agreed facts, they were not in all respects consistent. My deliberations in each case were confined to the statement of agreed facts pertinent to that case and such other evidence as was tendered in each case.
In this case, the Prosecutor relied on the following evidence:

four victim impact statements (Exhibit PX 1);

a tender bundle (Exhibit PX 2);

a statement of Mr Agusi (Exhibit PX 3);

an email of 6 February 2013 together with some engineering drawings (Exhibit PX 4);

an email of 28 February 2013,…

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.

Continue reading SafeWork NSW v DSF Constructions Pty Ltd

Details

AGLC: SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
Case: [2016] NSWDC 183
Decision Date: 24 August 2016

CaseChat Overview and Summary

SafeWork NSW prosecuted DSF Constructions Pty Ltd in the NSW District Court following the death of a worker who was fatally injured when an unsecured skylight fell 11 metres onto him. The legal issues before the court included the foreseeability of the risk and the consequences of that risk, the measures that were available and could have been taken to mitigate the risk, and the mid-range objective seriousness of the contravention of the Work Health and Safety Act 2011. The court also considered the relative culpability of the defendant compared to others involved in the project, the defendant's plea of guilty, genuine remorse and contrition, no prior convictions, cooperation with the regulator, and improvements to safety systems.

The court found that the risk of the skylight falling was reasonably foreseeable and the consequences of that risk were severe. The defendant, as the party responsible for designing, manufacturing, delivering and installing the structural steel works, had failed to implement appropriate safety measures, such as barriers or signs, to prevent access to the exclusion zone. The court also found that the contravention had a mid-range objective seriousness, and the defendant's relative culpability was a factor that could be taken into account. The court considered the defendant's guilty plea, genuine remorse, and cooperation with the regulator in determining the appropriate penalty. The court imposed a fine of $225,000 with a moiety to the Prosecutor, ordered the defendant to pay the Prosecutor’s costs, and noted the use of victim impact statements in the sentencing process.

The final orders of the court were that the defendant is convicted and fined the sum of $225,000 with a moiety to the Prosecutor. The defendant is also to pay the Prosecutor’s costs as agreed or assessed. The court's decision highlights the importance of ensuring adequate safety measures are in place in high-risk industries and the consequences of failing to do so. The case also demonstrates the court's willingness to take into account mitigating factors, such as genuine remorse and cooperation with the regulator, in determining an appropriate penalty.

Orders

Orders of the court

The defendant is convicted and fined the sum of $225,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs as agreed or assessed.

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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Medium Neutral Citation:	SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
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 $225,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs as agreed or assessed.
Catchwords:	Work Health and Safety Act 2011 ss 19(1), 32 – plea of guilty – unsecured skylight fell 11 metres onto worker – fatal injuries – defendant contracted by head contractor to design, manufacture, deliver and install structural steel works in accordance with engineering specifications and instructions from the head contractor – no barrier, sign or other measure in place to delineate exclusion zone at time of incident – foreseeability of risk – foreseeability of consequences of risk – measures readily available to reduce or eliminate risk – mid-range objective seriousness – relative culpability compared to others and whether this may be taken into account – high risk industry – specific and general deterrence – guilty plea entered at first available opportunity – genuine remorse and contrition – no prior convictions – cooperation with regulator – improved safety systems – use of victim impact statements
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	R v Turnbull [2016] NSWSC 847
Category:	Sentence
Parties:	SafeWork New South Wales (prosecutor) DSF Constructions Pty Ltd (defendant)
Representation:	Counsel: Mr J Agius SC with Mr B Docking, instructed by SafeWork NSW, appeared for the prosecutor Mr P Rooney, instructed by Kreisson Legal, appeared for the defendant
File Number(s):	2015/84860