SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141

SafeWork NSW v Keks Projects Pty Ltd [2024] NSWDC 141

Keks Projects Pty Ltd, as a person conducting a business with a work health and safety duty, failed to take reasonably practicable measures to ensure the safety of workers by not securing temporary fencing and restricting access to exclusion zones; this breach foreseeably exposed a worker to risk of serious injury in contravention of s 32 of the Work Health and Safety Act 2011 (NSW). The company’s culpability was in the lower half of the mid range due to available simple steps to eliminate or minimise risk which were not implemented. The penalty, reflecting seriousness, general and specific deterrence, was imposed allowing for mitigating factors and the early plea.

Parties
Prosecutor: SafeWork NSW; Defendant: Keks Projects Pty Ltd
Jurisdiction
Australia
Judgment Date
01 May 2024
Procedural Posture
Criminal / Sentence
Outcome
Conviction and sentencing: Keks Projects Pty Ltd convicted and fined. Additional orders for payment of part of fine to prosecutor and payment of prosecution costs.
Legal Topics
Work Health and Safety, Duty of Persons Undertaking Business, Risk of Death or Serious Injury, Objective Seriousness, Mitigating Factors, Aggravating Factors, Plea of Guilty, Deterrence, Capacity to Pay Penalty, Prosecution Costs, Fall Into Excavation, Temporary Fencing, Failure to Prevent Access, Failure to Install Fence Capable of Withstanding Force
Criminal Law Work Health and Safety Duty of Persons Undertaking Business Risk of Death or Serious Injury Objective Seriousness Mitigating Factors Aggravating Factors Plea of Guilty +7 more

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Parties

SafeWork NSW

Prosecutor

Keks Projects Pty Ltd

Defendant

Procedural Posture

Criminal / Sentence

Legal Issues

  1. 1 Whether Keks Projects Pty Ltd breached its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW) and exposed a worker to risk of death or serious injury contrary to s 32 of the Act
  2. 2 What is the appropriate penalty given the objective seriousness, aggravating and mitigating factors, and the defendant's capacity to pay

Ratio Decidendi

Keks Projects Pty Ltd, as a person conducting a business with a work health and safety duty, failed to take reasonably practicable measures to ensure the safety of workers by not securing temporary fencing and restricting access to exclusion zones; this breach foreseeably exposed a worker to risk of serious injury in contravention of s 32 of the Work Health and Safety Act 2011 (NSW). The company’s culpability was in the lower half of the mid range due to available simple steps to eliminate or minimise risk which were not implemented. The penalty, reflecting seriousness, general and specific deterrence, was imposed allowing for mitigating factors and the early plea.

Court Disposition

Conviction and sentencing: Keks Projects Pty Ltd convicted and fined. Additional orders for payment of part of fine to prosecutor and payment of prosecution costs.

Orders

  • Keks Projects Pty Ltd is convicted.
  • Order to pay a fine of $180,000 (discounted from $240,000 for early guilty plea).