[2025] ACTMC 22

CRIMINAL LAW - SENTENCING - judgment and punishment - Work Health and Safety - Category 2 offence - construction - engineering services

Work Health and Safety Act 2011(ACT), ss 5, 19, 32.

Agius v The Structural Design and Construction Company Pty Ltd [2025] ACTMC 20

Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5

SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228

SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565

Comcare v Commonwealth of Australia [2007] FCA 662

SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86

SafeWork NSW v S & T Services Pty Ltd [2021] NSWDC 140

Agius v Metal Manufacturers Pty Ltd and Jack Platt [2024] ACTMC 16

Agius v Transport Canberra and City Services Directorate [2024] ACTMC 17

SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175

SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580

SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

The Structural Design and Construction Company Pty Ltd (Defendant)

1. On 31 October 2025, I found the Defendant, The Structural Design and Construction Company Pty Ltd (SDCC), guilty of committing a Category 2 Work Health and Safety offence, contrary to s 32 of the Work Health and Safety Act 2011 (WHS Act) (Agius v The Structural Design and Construction Company Pty Ltd [2025] ACTMC 20 (Agius (No 1)). At the relevant time, SDCC was a person conducting a business or undertaking (PCBU) although it is now subject to external administration and is soon to be deregistered.
2. As set out in Agius (No 1), SDCC's prosecution arose from an incident which occurred on 6 August 2022 during the construction of a large residential and commercial building precinct in Phillip, known as WOVA (the Site). On that day a section of the shoring wall at the Site collapsed. It was approximately 35 metres in length and at least 10 metres deep.
3. It only took a few seconds for the shoring wall to collapse, with the Site fencing and scaffolding and the edge barrier to the driveway for the neighbouring multi-storey car park ('Sky Park') also falling into the excavation. The debris from the collapsed part of the wall travelled around 15 metres from the side of the excavation. In addition, about 5 minutes after the shoring wall collapsed, a section of the Sky Park driveway collapsed into the excavation. Fortunately, there was no one in the immediate vicinity of the Site at the time of the collapse.
4. SDCC was responsible for the design and associated drawings for the shoring wall to be used in the excavation of the Site. For the reasons set out in Agius (No 1), SDCC failed to provide an adequate design for the shoring wall system, in particular because its geotechnical investigation report failed to adequately account for the lateral pressure likely to be exerted by the soil in the calculated loads on the shoring wall and, critically:

(a) the design capacity for the shoring wall was not equal to or greater than the design action effect, as required by clause 7.2 of the Australian Standard AS1170.0; and

(b) the design of the shoring wall was incapable of supporting the ground forces when a minimum pressure of 0.2Ka was applied.

1. As a result, SDCC failed to comply with its duty under s 19 of the WHS Act to ensure, so far as was reasonably practicable, that the health and safety of other persons in the vicinity of the Site was not put at risk from the work it carried out as part of the conduct of its business in designing the shoring wall system for the Site excavation.
2. SDCC's failure to comply with its duty resulted in a shoring wall being constructed at the Site that was inadequate to prevent the excavation collapsing (at least once the excavation progressed below the depth of the shoring wall piles), as ultimately occurred. In turn, the collapse of the excavation risked the death of any workers who were within 15 metres of the collapsed wall face and the death of the occupants of any car which fell into the excavation. Given the regular attendance of workers at the site and the use of Sky Park by members of the public, multiple fatalities were a very real possibility as a result of the inadequate shoring wall design that SDCC prepared.
3. The maximum penalty for a Category 2 offence when committed by a body corporate was, at the time of the offence, a fine of $1,500,000.

1. The objective seriousness of an offence against the WHS Act involving a failure to comply with a health and safety duty is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that workers and others were not exposed to risks to their safety (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 228 at [30]). Considerations which are relevant to an assessment of the duty holder's culpability include (SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565 at [49]):

(a) the potential consequences of the risk (noting that the focus must be on the risk arising from the failure to take reasonably practicable steps to avoid injury, not the likelihood of injury resulting - conduct will be more serious, the more serious the potential injuries, whether or not they are likely to materialise - Nash v Silver City Drilling (NSW) NSWCCA 96 at [53]);

(b) the availability of steps to eliminate or minimise the risk;

(c) the ease with which mitigating steps could have been taken;

(d) whether the risk was an obvious or clear one;

(e) whether the risk was known, or ought reasonably to have been known to or identified by the offender (it is an aggravating factor if the risk was foreseeable, even if the precise cause or circumstance of exposure to the risk were not foreseeable, and it is a further aggravating factor if the risk was not only foreseeable but in fact foreseen by the offender - Comcare v Commonwealth of Australia [2007] FCA 662, Madgwick J noted at [120]); and

(f) the vulnerability of the workers and others exposed to the risk.

1. The culpability of an offender will turn on an evaluation of all the various factors, which may pull in different directions (Nash v Silver City Drilling (NSW) NSWCCA 96 at [42]). By way of example, the following scenarios have been considered in other cases:

(a) an offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible (Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [16]; SafeWork NSW v CCP Remedial Pty Ltd [2021] NSWDC 86 at [69]);

(b) the culpability of an offender has been found to be reasonably high in circumstances where, while the relevant risk was not expected to occur often, the seriousness of the foreseeable resultant harm was extreme and the steps to be taken to avoid it were straightforward and involved only minor inconvenience and little cost (Nash v Silver City Drilling (NSW) NSWCCA 96); and

(c) the neglect of simple, well-known, precautions to deal with an evident and great risk of injury, take a matter towards the worst-case category (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]).

Assessment of objective serious of SDCC's conduct

1. This is a very serious example of a Category 2 WHS offence. It falls towards the upper end of the spectrum for this kind of offence.
2. The potential consequences of the risk to the health and safety of persons in the vicinity of the Site at the time the shoring wall collapsed were catastrophic. As I have found, there was the very real possibility of multiple fatalities. Further, in the absence of adequate engineering control, the likelihood that the excavation would collapse was both obvious and significant.
3. There were also steps that could have been taken by SDCC to eliminate the risk of the shoring wall collapsing, being to design a shoring wall system that properly took into account the lateral pressure that was likely to be exerted on the shoring wall and to incorporate engineering controls which were capable of withstanding the design action effect.
4. Doing so was reasonably practicable and it is what SDCC had been paid to do. Further, the time required to design an adequate shoring system is unlikely to have differed materially (if at all) from the time taken to design the shoring wall system that SDCC prepared. The Site had been mapped, drawings had been prepared and relevant control mechanisms identified. SDCCs principal failure was that it did not stipulate a sufficient number or length of piles for the soil conditions. Addressing that failing would not have required much additional time, if any, beyond the time required to prepare the design it created.
5. Further, SDCC had identified in its geotechnical investigation report that unsupported cuts of the soil profile were not recommended as they carried the risk of potential slump failure, especially after a period of wet weather, which may result in injury to people and damage to nearby infrastructure. SDCC thus knew of the risk to be guarded against. It was engaged by the principal contractor at the Site to address that risk through engineering controls which, as a professional engineering services company, it ought to have been able to design.

1. SDCC did not contest its prosecution and did not make any submissions in relation to its subjective circumstances. As noted earlier in these reasons, SDCC is under external administration and is soon to be deregistered.

1. SDCC has no prior convictions for offences against the WHS Act and is accordingly entitled to some leniency in relation to the present offence.

1. The Informant brought three cases to my attention as being of possible assistance in determining an appropriate sentence in these proceedings. They are SafeWork NSW v S & T Services Pty Ltd [2021] NSWDC 140, Agius v Metal Manufacturers Pty Ltd and Jack Platt [2024] ACTMC 16 and Agius v Transport Canberra and City Services Directorate [2024] ACTMC 17. The first of these cases is factually the closest to the present matter, while the latter two cases are examples of recent decisions from this jurisdiction.
2. I have had regard to the sentencing outcomes of these cases, and the reasons of the courts in coming to those outcomes, in determining the appropriate sentence for SDCC. In doing so, I note, as the Informant submitted, that past sentences do not fix the boundaries within which future courts ought to sentence (Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]). I am also of the view that the objective serious of the present offence is higher than the objective serious of the offences involved in the cases which were brought to my attention.

1. The primary considerations to which I must have regard in determining an appropriate sentence are the objective seriousness of the offending conduct and the importance of the sentence reflecting the need for general deterrence (SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175 at [33]; SafeWork NSW v Inghams Enterprises Pty Ltd [2023] NSWDC 580; C_omcare v Commonwealth of Australia_ [2007] FCA 662, at [120]).
2. SDCC's offending conduct was very serious and general deterrence is the dominant sentencing purpose. General deterrence is a particularly relevant factor in light of the objects and terms of the WHS Act (Comcare v Commonwealth of Australia [2007] FCA 662 at [120]). As the Court in SafeWork NSW v McConnel Dowell Constructors (Aust) Pty Limited (No 3) [2021] NSWDC 105 said at [30]:

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

1. SDCC's conduct must also be denounced.
2. In circumstances where SDCC is soon to be deregistered, specific deterrence and accountability are not significant sentencing considerations.
3. Given the objective seriousness of SDCC's conduct, it is necessary to impose a significant punishment on SDCC in order to achieve the relevant purposes of sentencing. Having regard to the maximum penalty that was applicable at the time of SDCC's offence, I have determined that the appropriate punishment is a fine of $750,000.

(a) On the charge of committing a Category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011, the Defendant is convicted.

(b) The Defendant is required to pay a fine of $750,000.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.