SafeWork NSW v Riverwall Constructions Pty Ltd

Case [2022] NSWDC 408

District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408
Hearing dates: 30 August 2022
Date of orders: 14 September 2022
Decision date: 14 September 2022
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   Riverwall Constructions Pty Ltd was convicted on 30 August 2022.

(2)   The appropriate fine is $800,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Riverwall Constructions Pty Ltd to pay a fine of $600,000.

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

(5)   Order Riverwall Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $41,300.11.

(6) Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):

a. Within six months of the date of these Orders, the defendant is to fund (to a limit of $20,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses:

i. the incident in which Mr Joel White and Mr Higham (the workers) were exposed to a risk of death or serious injury on 11 February 2019 (the material date);

ii. the risk to which the workers were exposed on the material date;

iii. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which the workers were exposed on the material date as far as is reasonably practicable;

iv. other guidance material applicable to safe work on roofs and near power lines as deemed appropriate by SafeWork NSW;

b. The management of the project and the provider will be undertaken by SafeWork NSW;

c. The content of the project and the provider of the project are to be approved by SafeWork NSW;

d. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

e. The video is to bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales;

f. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

g. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

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 conducted a business or undertaking involving building and construction work – workers engaged in dismantling edge protection while standing on roof – worker suffered fatal injuries after he was electrocuted – contact between…

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Details
AGLC
SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408
Case
[2022] NSWDC 408
Decision Date

CaseChat Overview and Summary

SafeWork NSW prosecuted Riverwall Constructions Pty Ltd in the NSW District Court over serious work health and safety breaches leading to severe injuries. The case arose from an incident where two workers, standing on a roof, were exposed to fatal risks while dismantling edge protection. One worker, Mr. Joel White, was electrocuted and killed when the handrail he was holding made contact with energised power lines, and another worker, Mr. Higham, suffered severe flash burns. The prosecution argued that Riverwall Constructions Pty Ltd failed to conduct a site-specific risk assessment, did not arrange for the power lines to be de-energised, and did not verify the contractor’s Safe Work Method Statement.

The court had to decide the objective seriousness of the offences, the mitigating and aggravating factors, and the appropriate penalty, including fines and costs. The prosecution argued for a significant penalty to serve as a deterrent for future breaches, while the defence highlighted the company’s early guilty plea and its cooperation with the investigation. The court considered the gravity of the incident, the company's history, and its financial capacity in determining the penalty.

The court found Riverwall Constructions Pty Ltd guilty and ordered a fine of $600,000, reflecting a 25% reduction due to the early plea of guilty. Half of the fine was directed to be paid to the prosecutor. Additionally, the court mandated that Riverwall Constructions Pty Ltd fund the development and production of an educative animated video addressing the incident and related safety measures, to be managed and approved by SafeWork NSW. The court also ordered the company to pay the prosecutor’s costs and provided liberty to restore the matter if there were any issues with compliance.

Orders

Orders of the court

(1) Riverwall Constructions Pty Ltd was convicted on 30 August 2022.

(2) The appropriate fine is $800,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Riverwall Constructions Pty Ltd to pay a fine of $600,000.

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

(5) Order Riverwall Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $41,300.11.

(6) Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):

a. Within six months of the date of these Orders, the defendant is to fund (to a limit of $20,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses:

i. the incident in which Mr Joel White and Mr Higham (the workers) were exposed to a risk of death or serious injury on 11 February 2019 (the material date);

ii. the risk to which the workers were exposed on the material date;

iii. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which the workers were exposed on the material date as far as is reasonably practicable;

iv. other guidance material applicable to safe work on roofs and near power lines as deemed appropriate by SafeWork NSW;

b. The management of the project and the provider will be undertaken by SafeWork NSW;

c. The content of the project and the provider of the project are to be approved by SafeWork NSW;

d. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW;

e. The video is to bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales;

f. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service;

g. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

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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