SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604

SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604

Bermagui Constructions Pty Ltd, as principal contractor, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by not ensuring the health and safety of workers at the site so far as reasonably practicable—specifically, by failing to implement fall prevention systems—thus exposing Mr Spillane to risk of death or serious injury. Given the reasonably foreseeable risk, the ease of prevention, the fatal consequences, and the company's acknowledged systems inadequacy, the offence warranted a significant penalty. Taking into account aggravating and mitigating factors, including early guilty plea and remorse, conviction and a fine with appropriate discount was...

Parties
Prosecutor: SafeWork NSW; Defendant: Bermagui Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
20 December 2024
Procedural Posture
Criminal Prosecution / Sentencing
Outcome
Conviction and fine imposed
Legal Topics
Prosecution, Sentencing, Duty of Persons Undertaking Business, Risk of Death or Serious Injury, Objective Seriousness, Mitigating Factors, Aggravating Factors, Plea of Guilty, Deterrence, Capacity to Pay, Prosecution Costs, Fall From Height, Roofing Work, Failure to Direct Workers Not to Work on Roof Until Safety Measures Implemented
Criminal Law Work Health and Safety Law Prosecution Sentencing Duty of Persons Undertaking Business Risk of Death or Serious Injury Objective Seriousness Mitigating Factors +8 more

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Parties

SafeWork NSW

Prosecutor

Bermagui Constructions Pty Ltd

Defendant

Procedural Posture

Criminal Prosecution / Sentencing

Legal Issues

  1. 1 Did Bermagui Constructions Pty Ltd fail to comply with its work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)?
  2. 2 Did this failure expose a worker to a risk of death or serious injury contrary to s 32 of the Work Health and Safety Act 2011 (NSW)?
  3. 3 What is the appropriate penalty for this breach, having regard to objective seriousness, aggravating and mitigating factors, and the plea of guilty?

Ratio Decidendi

Bermagui Constructions Pty Ltd, as principal contractor, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by not ensuring the health and safety of workers at the site so far as reasonably practicable—specifically, by failing to implement fall prevention systems—thus exposing Mr Spillane to risk of death or serious injury. Given the reasonably foreseeable risk, the ease of prevention, the fatal consequences, and the company's acknowledged systems inadequacy, the offence warranted a significant penalty. Taking into account aggravating and mitigating factors, including early guilty plea and remorse, conviction and a fine with appropriate discount was...

Court Disposition

Conviction and fine imposed

Orders

  • Bermagui Constructions Pty Ltd is convicted.
  • Bermagui Constructions Pty Ltd to pay a fine of $225,000 (discounted for early plea of guilty, originally $300,000).