SafeWork NSW v Riverwall Constructions Pty Ltd [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 energised power lines and steel hand rail worker was holding – second worker suffered severe flash burns to legs – failure to ensure contractor conducted a site-specific risk assessment – failure to arrange for power lines to be de-energised prior to task being undertaken – failure to verify that contractor's Safe Work Method Statement identified hazards and risks associated with power lines and outlined associated control measures Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 17, 19, 32, 238, 244 Work Health and Safety Regulation 2017 (NSW), cll 166, 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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australia Scaffolds User Manual for Roof Edge Protection Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electric Lines, 2014 WorkCover NSW, Code of Practice, Safe Work on Roofs, Part 1: Commercial and Industrial Buildings, 2009 WorkCover NSW, Code of Practice, Work Near Overhead Power Lines, July 2006 WorkCover NSW, Code of Practice, Construction Work, July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Riverwall Constructions Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) M Shume (Defendant)