SafeWork NSW v MGK Constructions Pty Ltd [2019] NSWDC 518

SafeWork NSW v MGK Constructions Pty Ltd [2019] NSWDC 518

The defendant breached its health and safety duty by allowing work on the first floor near an unprotected stair void when the risk of a fall was obvious and known, and when inexpensive and reasonably practicable controls were available, including ensuring void protection was installed, requiring workers not to work on the first floor until protection was in place, and providing the Safe Work Method Statement. The likelihood of the risk was moderate and the consequences included death; the worker's fall and injuries manifested that risk. Taking into account general and specific deterrence, aggravating injury, mitigating factors, the defendant's size and capacity to pay, and a 25% discount...

Jurisdiction
Australia
Judgment Date
23 September 2019
Procedural Posture
Criminal Prosecution for an Offence Against Section 32 of the Work Health and Safety Act 2011 / Sentencing After Plea of Guilty
Outcome
The defendant was convicted and fined $75,000.
Legal Topics
['failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'falls From Height' 'objective Seriousness' 'general and Specific Deterrence' 'mitigating Factors' 'restoration Order']
['criminal Law' 'work Health and Safety' 'sentencing'] ['failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'falls From Height' 'objective Seriousness' 'general and Specific Deterrence' 'mitigating Factors' 'restoration Order']

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Procedural Posture

Criminal Prosecution for an Offence Against Section 32 of the Work Health and Safety Act 2011 / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's contravention of section 32 of the Work Health and Safety Act 2011." 'The objective seriousness of exposing a worker to the risk of falling through an unprotected stair void.' 'Whether mitigating factors including no previous convictions, rehabilitation prospects, remorse, guilty plea and cooperation reduced penalty.' "Whether the Court had power under section 237 of the Work Health and Safety Act 2011 to make a compensation or restoration order for the injured worker's economic loss."]

Ratio Decidendi

The defendant breached its health and safety duty by allowing work on the first floor near an unprotected stair void when the risk of a fall was obvious and known, and when inexpensive and reasonably practicable controls were available, including ensuring void protection was installed, requiring workers not to work on the first floor until protection was in place, and providing the Safe Work Method Statement. The likelihood of the risk was moderate and the consequences included death; the worker's fall and injuries manifested that risk. Taking into account general and specific deterrence, aggravating injury, mitigating factors, the defendant's size and capacity to pay, and a 25% discount...

Court Disposition

The defendant was convicted and fined $75,000.

Orders

  • ['The offender is convicted.' 'I impose a fine of $75,000.' 'I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' "The offender is to pay the prosecutor's costs, except for the costs of or incidental to the appearance on 20 September 2019, as agreed or assessed."]