SafeWork NSW v Mars Commercial Pty Ltd [2023] NSWDC 531

SafeWork NSW v Mars Commercial Pty Ltd [2023] NSWDC 531

Mars Commercial Pty Ltd was the principal contractor and failed to eliminate or mitigate an obvious and foreseeable risk of falls from height by not undertaking a high risk work assessment and providing adequate fall protection. The duty was nondelegable and required positive measures to ensure safety. The offence was objectively serious due to the gravity of the risk, availability of simple mitigation steps, and substantial injury sustained. The company’s post-incident actions and plea of guilty were mitigating factors, warranting a reduction in penalty.

Parties
Prosecutor: SafeWork NSW; Defendant: Mars Commercial Pty Ltd
Jurisdiction
Australia
Judgment Date
01 December 2023
Procedural Posture
Criminal Prosecution / Sentence
Outcome
Conviction and imposition of fine and other orders
Legal Topics
Work Health and Safety, Duty of Persons Conducting Business, Risk of Death or Serious Injury, Sentencing Principles, Mitigating and Aggravating Factors, General and Specific Deterrence, Prosecutor's Costs
Criminal Law Work Health and Safety Duty of Persons Conducting Business Risk of Death or Serious Injury Sentencing Principles Mitigating and Aggravating Factors General and Specific Deterrence Prosecutor's Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 8 Authorities cited 29 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

SafeWork NSW

Prosecutor

Mars Commercial Pty Ltd

Defendant

Procedural Posture

Criminal Prosecution / Sentence

Legal Issues

  1. 1 Whether Mars Commercial Pty Ltd failed to comply with its health and safety duty under s 19(1) 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.
  2. 2 Appropriate penalty, including consideration of mitigating and aggravating factors, for breach of work health and safety duty.

Ratio Decidendi

Mars Commercial Pty Ltd was the principal contractor and failed to eliminate or mitigate an obvious and foreseeable risk of falls from height by not undertaking a high risk work assessment and providing adequate fall protection. The duty was nondelegable and required positive measures to ensure safety. The offence was objectively serious due to the gravity of the risk, availability of simple mitigation steps, and substantial injury sustained. The company’s post-incident actions and plea of guilty were mitigating factors, warranting a reduction in penalty.

Court Disposition

Conviction and imposition of fine and other orders

Orders

  • The defendant is convicted.
  • The appropriate fine for the offence is $550,000, reduced by 25% for the plea of guilty.