SafeWork NSW v Apex Building Systems Pty Ltd [2023] NSWDC 14

SafeWork NSW v Apex Building Systems Pty Ltd [2023] NSWDC 14

Apex breached its work health and safety duty as principal contractor by failing to take reasonably practicable measures before demolition work at height commenced, including failing to verify an adequate risk assessment, failing to require or assess an adequate safe work procedure or SWMS, and failing to provide appropriate supervision. The risk of death or serious injury from a fall from height was foreseeable, the likelihood of the risk occurring was significant, the potential consequences were grave, and the steps to eliminate or minimise the risk involved little or no burden. Apex's culpability was in the mid range and materially lower than Greater Civil's because Apex did not direct...

Jurisdiction
Australia
Judgment Date
08 February 2023
Procedural Posture
Criminal Work Health and Safety Prosecution Under the Work Health and Safety Act 2011 (nsw) / Sentence Following Conviction and Early Plea of Guilty
Outcome
Apex Building Systems Pty Ltd was convicted and fined $180,000 after a 25% discount for its early guilty plea; 50% of the fine was ordered to be paid to the prosecutor and Apex was ordered to pay the prosecutor's costs.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'working From Height' 'principal Contractor Duties' 'safe Work Method Statements' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'working From Height' 'principal Contractor Duties' 'safe Work Method Statements' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' 'prosecution Costs']

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Procedural Posture

Criminal Work Health and Safety Prosecution Under the Work Health and Safety Act 2011 (nsw) / Sentence Following Conviction and Early Plea of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed on Apex Building Systems Pty Ltd for failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury contrary to s 32 of the Act.' "The objective seriousness and culpability of Apex's failure to assess risks, review safe work method statements and supervise subcontractors in relation to demolition work at height." 'The relevance of aggravating and mitigating factors, including serious injury, prior good record, remorse, rehabilitation, cooperation and an early guilty plea.' "Whether consistency with the sentence imposed on Greater Civil Pty Limited required adjustment of Apex's sentence." "Whether Apex's capacity to pay affected the fine."]

Ratio Decidendi

Apex breached its work health and safety duty as principal contractor by failing to take reasonably practicable measures before demolition work at height commenced, including failing to verify an adequate risk assessment, failing to require or assess an adequate safe work procedure or SWMS, and failing to provide appropriate supervision. The risk of death or serious injury from a fall from height was foreseeable, the likelihood of the risk occurring was significant, the potential consequences were grave, and the steps to eliminate or minimise the risk involved little or no burden. Apex's culpability was in the mid range and materially lower than Greater Civil's because Apex did not direct...

Court Disposition

Apex Building Systems Pty Ltd was convicted and fined $180,000 after a 25% discount for its early guilty plea; 50% of the fine was ordered to be paid to the prosecutor and Apex was ordered to pay the prosecutor's costs.

Orders

  • ['Apex Building Systems Pty Ltd was convicted on 31 January 2023.' 'The appropriate fine is $240,000 but that will be reduced by 25% to reflect the early plea of guilty.' 'Order Apex Building Systems Pty Ltd to pay a fine of $180,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the...