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In a recent decision of the NSW District Court (the Court), a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth) (WHS Act), which resulted in workers being exposed to a risk of death or serious injury.

Earlier this year, the NSW District Court issued a judgment in which it was found that Jason Stitt, a licenced builder that operated as a sole trader under the business name ReidStitt Constructions (the Offender), had failed to ensure, so far as was reasonably practicable, the health and safety of his workers (see SafeWork NSW v Stitt [2024] NSWDC 255). This failure had exposed workers to a risk of death or serious injury and, unfortunately, resulted in the death of a worker in 2019.

The Offender’s business mainly consists of renovating private residences in Sydney, New South Wales. The worker was a labour hire employee and often worked as a casual labourer for the Offender over a period of four years.

In early September 2019, the worker and two other workers attended a residential property on behalf of the Offender to resolve a problem with the underfloor heating system at the property. This work required the workers, amongst other things, to erect a mobile scaffold tower.

At the time, none of the workers held a High-Risk Work Licence (HWRL). Accordingly, in order to comply with the Work Health and Safety Regulation 2017 (NSW), the scaffold could only be installed to a height where the risk of a person or object falling was no more than four metres. However, the workers erected the scaffold to a height of 8.65 metres, with two work platforms positioned more than four metres above the ground.

Two days later, the workers were instructed by the Offender to dismantle the scaffold. During the course of dismantling the scaffold, the worker unfortunately fell from a height of over five metres. He suffered serious head injuries and passed away a few days later.

The Court was satisfied beyond reasonable doubt that the Offender breached his health and safety duty because he failed to take all reasonably practicable steps to prevent the death of the worker. In particular, it found that the Offender failed to:

• engage a person with a High-Risk Work Licence at the property;
• give adequate instructions to ensure the scaffold was below four metres if he could not engage a person with a High-Risk Work Licence;
• devise, implement and enforce a system of work that involved reading the installation and dismantling instructions, conducting a full risk assessment and completing a Safe Work Method Statement (SWMS) for scaffolding;
• have a competent person, such as a licenced scaffolder, inspect the scaffold; and
• provide adequate supervision to the workers.

In the sentencing decision (SafeWork NSW v Stitt [2024] NSWDC 396), the Court considered a number of aggravating and mitigating factors before determining to issue the conviction and fine.

Understandably, the death of the worker was considered a highly substantial loss and an aggravating factor. The Court also reasoned that the steps that could have been taken by the Offender to avoid this risk were simple, inexpensive, and were also common knowledge and known to him.

In terms of mitigating factors, the Court considered that the Offender had shown genuine remorse for the incident, had suffered from post-traumatic stress symptoms and attended a psychologist following the incident. It was also noted that the Offender was in contact with the worker’s family the day after the worker had passed away, and he was a pallbearer at the worker’s funeral, at the request of the worker’s family.

The Court considered that this was the Offender’s first offence and that he had good prospects of rehabilitation.

The Court took into consideration that the Offender did not have a large capacity to pay a fine and that 10-12sub-contractors relied on the Offender for ongoing work. In addition, it was noted that the Offender’s business had suffered substantial financial loss, in part due to significant legal and settlement fees and also as a result of the COVID-19 pandemic.

It was also noted that the Offender had developed and implemented work health and safety compliance systems in the workplace following the incident, so that he now:

• held a toolbox talk each day before commencing work;
• explicitly told workers not to erect or dismantle scaffolds unless the Offender was onsite and explicitly stated that the scaffold must not be above four metres;
• engaged licenced scaffolders if the scaffold needed to be above four metres; and
• required his workers to complete a SWMS before undertaking high-risk work.

In contemplation of these factors, the Court issued a conviction and ordered the Offender pay a fine of $100,000 (of the possible maximum of $300,000).

Lesson for employers

It is critical that any person conducting a business, or an undertaking is aware of their duties and responsibilities to protect the work health and safety of their workers and take proactive steps to ensure that their workers comply with these duties in every aspect of the workplace. As can be seen in this matter, the consequences of a failure to comply can be significant – particularly in high-risk workplaces.  

It is also a timely reminder noting that the NSW WHS Act was recently amended to include an industrial manslaughter offence – carrying a penalty of up to 25 years imprisonment for an individual and a fine of up to $20 million for a body corporate. These reforms commenced operation on 16 September 2024.

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