SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169

SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169

The offender, as principal contractor, breached its health and safety duty by failing to ensure a plain English direction and adequate supervision to operate an excavator with the front safety window closed, exposing a worker to risk of serious injury. The objective seriousness was low range; mitigating factors included plea of guilty, remorse, good character, and post-incident remedial action. A penal reduction of 25% applied for the plea, and parity with the related NMK sentence was considered. The final sentence was conviction, a fine of $90,000, costs of $15,000, and an order distributing 50% of the fine to the prosecutor.

Parties
Prosecutor: SafeWork NSW; Offender: ProjectCorp Australia Pty Limited
Jurisdiction
Australia
Judgment Date
22 June 2017
Procedural Posture
Criminal / Sentence
Outcome
Conviction; fine imposed; costs order made.
Legal Topics
Duty of Persons Undertaking Business, Risk of Death or Serious Injury, Objective Seriousness, Mitigating Factors, Aggravating Factors, Plea of Guilty, General Deterrence, Specific Deterrence, Parity Principle, Appropriate Penalty, Costs, Supervision of Machinery
Criminal Law Work Health and Safety Law Duty of Persons Undertaking Business Risk of Death or Serious Injury Objective Seriousness Mitigating Factors Aggravating Factors Plea of Guilty +6 more

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Parties

SafeWork NSW

Prosecutor

ProjectCorp Australia Pty Limited

Offender

Procedural Posture

Criminal / Sentence

Legal Issues

  1. 1 Whether the offender failed to comply with its health and safety duty under s 19 of the Work Health and Safety Act 2011 and thereby exposed a worker to a risk of death or serious injury in contravention of s 32 of the Act
  2. 2 Assessment of the objective seriousness of the offence
  3. 3 Application of sentencing principles including deterrence, parity, and mitigation

Ratio Decidendi

The offender, as principal contractor, breached its health and safety duty by failing to ensure a plain English direction and adequate supervision to operate an excavator with the front safety window closed, exposing a worker to risk of serious injury. The objective seriousness was low range; mitigating factors included plea of guilty, remorse, good character, and post-incident remedial action. A penal reduction of 25% applied for the plea, and parity with the related NMK sentence was considered. The final sentence was conviction, a fine of $90,000, costs of $15,000, and an order distributing 50% of the fine to the prosecutor.

Court Disposition

Conviction; fine imposed; costs order made.

Orders

  • The offender is convicted.
  • A fine of $90,000 is imposed.