SafeWork NSW v Leda Form Group Pty Ltd - [2022] NSWDC 524

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524
Hearing dates: 27 October 2022
Date of orders: 3 November 2022
Decision date: 03 November 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Leda Form Group Pty Ltd is convicted.
(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Leda Form Group Pty Ltd to pay a fine of $450,000.
(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 Leda Form Group 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 – defendant involved in installation of formwork on construction project – three workers on a roof preparing to install formwork – worker stepped backwards and fell through an uncovered penetration beside the lift shaft – worker fell 19 metres to the concrete floor below – failure to undertake adequate risk assessment – failure to securely cover penetration – failure to install perimeter guard rails around penetration – failure to prohibit workers from undertaking work on roof until adequate protection against risk had been installed – failure to implement and enforce adequate safe work method statement – failure to provide information, training and instruction to workers – failure to provide adequate supervision to workers

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
Work Health and Safety Regulation 2011 cl 78, 79, 291, 299

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
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
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
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, April 2016
Safe Work Australia, Safe Work on Roofs Information Sheet, January 2016

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Leda Form…

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: [2022] NSWDC 524
Decision Date: 03 November 2022

CaseChat Overview and Summary

SafeWork NSW prosecuted Leda Form Group Pty Ltd in the Local Court of New South Wales, concerning a workplace health and safety breach that resulted in a worker's fatal fall. The incident occurred when a worker stepped backwards and fell through an uncovered penetration beside a lift shaft on a construction site, plunging 19 metres to his death. The prosecution argued that the company failed to undertake an adequate risk assessment, secure a penetration, install perimeter guard rails, prohibit work on the roof, implement a safe work method statement, and provide proper training and supervision. Leda Form Group pleaded guilty to the charges.

The court was required to determine the objective seriousness of the offence, as well as any mitigating or aggravating factors. Given the gravity of the incident, the court considered the company's lack of adequate safety measures, previous convictions, and the need for deterrence. The plea of guilty was acknowledged as a mitigating factor, warranting a reduction in the fine. The court balanced these considerations, ultimately deciding on an appropriate penalty that would serve both general and specific deterrence purposes.

In its reasoning, the court found the company's breach of duty to be of high objective seriousness due to the worker's death. However, it reduced the fine by 25% to account for the early plea of guilty. The court ordered Leda Form Group to pay a fine of $450,000, with 50% to be paid to the prosecutor. Additionally, the court mandated that Leda Form Group pay the prosecutor's costs. The decision underscores the importance of stringent compliance with workplace health and safety regulations.

Orders

Orders of the court

(1) Leda Form Group Pty Ltd is convicted.

(2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Leda Form Group Pty Ltd to pay a fine of $450,000.

(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 Leda Form Group Pty Ltd to pay the prosecutor’s costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Leda Form Group Pty Ltd [2022] NSWDC 524
Hearing dates:	27 October 2022
Date of orders:	3 November 2022
Decision date:	03 November 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Leda Form Group Pty Ltd is convicted. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Leda Form Group Pty Ltd to pay a fine of $450,000. (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 Leda Form Group 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 – defendant involved in installation of formwork on construction project – three workers on a roof preparing to install formwork – worker stepped backwards and fell through an uncovered penetration beside the lift shaft – worker fell 19 metres to the concrete floor below – failure to undertake adequate risk assessment – failure to securely cover penetration – failure to install perimeter guard rails around penetration – failure to prohibit workers from undertaking work on roof until adequate protection against risk had been installed – failure to implement and enforce adequate safe work method statement – failure to provide information, training and instruction to workers – failure to provide adequate supervision to workers
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 Work Health and Safety Regulation 2011 cl 78, 79, 291, 299
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 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, April 2016 Safe Work Australia, Safe Work on Roofs Information Sheet, January 2016
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Leda Form…