SafeWork NSW v Metsquare Pty Ltd [2024] NSWDC 84

SafeWork NSW v Metsquare Pty Ltd [2024] NSWDC 84

The defendant was convicted and fined because, as a PCBU owing a non-delegable duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), it failed to comply with that duty and exposed workers to a risk of serious injury from falling through an inadequately marked and secured penetration. The offence was objectively serious: the risk was obvious and known, the foreseeable harm was significant, the defendant's own SWMS and SOP required penetrations to be clearly marked and secured, other covers were also not properly marked, and the steps to avoid the risk were straightforward, available, low effort and minimal cost. General deterrence was significant; specific deterrence had little...

Jurisdiction
Australia
Judgment Date
22 March 2024
Procedural Posture
Criminal Work Health and Safety Prosecution for Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty to an Amended Summons
Outcome
Defendant convicted and fined $450,000 after a 25% discount for the guilty plea; 50% of the fine payable to the prosecutor; defendant ordered to pay prosecutor's costs as agreed or assessed.
Legal Topics
['pcbu Duty Under S 19(1) of the Work Health and Safety Act 2011 (nsw)' 'failure to Comply With Health and Safety Duty Exposing Workers to Risk of Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' "prosecutor's Costs"]
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['pcbu Duty Under S 19(1) of the Work Health and Safety Act 2011 (nsw)' 'failure to Comply With Health and Safety Duty Exposing Workers to Risk of Serious Injury' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'plea of Guilty Discount' "prosecutor's Costs"]

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Procedural Posture

Criminal Work Health and Safety Prosecution for Offence Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty to an Amended Summons

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's failure to comply with its work health and safety duty contrary to s 32 of the Work Health and Safety Act 2011 (NSW)." 'How objectively serious the offence was, having regard to the foreseeable risk of serious injury or death from an inadequately marked and secured penetration cover and protruding reinforcing bars.' "What weight should be given to general deterrence, specific deterrence, aggravating factors, mitigating factors and the defendant's guilty plea." "Whether prosecutor's costs should be ordered."]

Ratio Decidendi

The defendant was convicted and fined because, as a PCBU owing a non-delegable duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), it failed to comply with that duty and exposed workers to a risk of serious injury from falling through an inadequately marked and secured penetration. The offence was objectively serious: the risk was obvious and known, the foreseeable harm was significant, the defendant's own SWMS and SOP required penetrations to be clearly marked and secured, other covers were also not properly marked, and the steps to avoid the risk were straightforward, available, low effort and minimal cost. General deterrence was significant; specific deterrence had little...

Court Disposition

Defendant convicted and fined $450,000 after a 25% discount for the guilty plea; 50% of the fine payable to the prosecutor; defendant ordered to pay prosecutor's costs as agreed or assessed.

Orders

  • ['The defendant is convicted.' 'The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect the plea of guilty.' 'The defendant is to pay a fine of $450,000.00.' 'Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.' "Pursuant...