A NSW principal contractor has been fined $69,750 after a subcontractor’s worker fell from a bridge abutment while removing formwork without proper fall protection equipment, marking the third workplace safety sentencing by the restored NSW Industrial Court.

Menai Civil Contractors Pty Ltd was prosecuted following the November 2022 incident at a residential development site in Huntley, NSW, where inadequate height safety measures led to a worker’s fall and injury during bridge construction activities.

The Incident and Contractual Arrangements

The accident occurred at property developer Stockland Development’s “Forest Reach Stage 2 site,” where complex subcontracting arrangements were in place for bridge construction across a creek.

Stockland had engaged Menai Civil as principal contractor, which then subcontracted Bridgeworks Aust Pty Ltd for bridge construction assistance. Bridgeworks further engaged labour-supply company Topdeck Formwork Services on an “ad hoc” basis to provide workers for formwork construction, erection, and removal.

The injured worker was employed by Topdeck and was using an extension ladder to attach formwork components to a chain for removal by excavator when the incident occurred.

Safety System Failures

The worker was not wearing a harness because the attachment points were located on the opposite side of the abutment from where he needed to work. During the chaining process, he fell backwards from the abutment, sustaining injuries.

Industrial Court Justice Jane Paingakulam found that Bridgeworks’ safe work method statement (SWMS) for formwork removal specifically contemplated using an elevated work platform (EWP). Additionally, Menai Civil had implemented regular engineering inspections to ensure SWMS compliance across the worksite.

However, on the day of the incident, Menai Civil failed to ensure the applicable SWMS was followed and that an EWP was utilized instead of the inadequate ladder arrangement.

Legal Proceedings and Sentencing

As principal contractor, Menai Civil pleaded guilty to breaching section 19 (“Primary duty of care”) of the NSW Work Health and Safety Act 2011, constituting a Category 3 offense under section 33.

During sentencing, Justice Paingakulam applied the “De Simoni principle”—established by the High Court in 1981—noting that prosecutors had agreed to withdraw portions of the statement of facts referring to risks of serious injury or death that could have supported a more serious Category 2 offense.

This principle prevents courts from considering factors that would warrant conviction for a more serious offense when prosecutors have accepted a plea to a lesser charge.

Mitigating Factors and Penalty Determination

Justice Paingakulam considered several mitigating factors in determining the penalty:

• Menai Civil’s clean record of over 20 years in business without prior convictions
• Post-incident improvements to the company’s safety systems
• The low likelihood of reoffending based on demonstrated safety improvements

The Court determined an appropriate fine of $93,000 from the maximum available penalty of just over $620,000, but reduced this to $69,750 in recognition of the company’s early guilty plea.

Industrial Court’s Restoration Context

This sentencing represents the third WHS decision since the NSW Industrial Court was restored in July 2024, highlighting renewed focus on workplace safety enforcement in the state.

The Court’s previous two WHS sentencing judgments both involved more serious Category 2 offenses, making this the first Category 3 sentencing decision since restoration.

Industry Implications

The case underscores several critical issues for principal contractors:

• Heightened Responsibility: Principal contractors bear responsibility for ensuring subcontractors follow established safety procedures, regardless of complex subcontracting arrangements
• SWMS Compliance: Having appropriate safe work method statements is insufficient—active monitoring and enforcement of compliance is essential
• Fall Protection Protocols: Height-related work requires rigorous adherence to fall protection measures, with elevated work platforms preferred over makeshift solutions like extension ladders
• Regular Oversight: Systematic inspection regimes must extend beyond documentation to actual work practices on-site

Broader Safety Message

This prosecution demonstrates that workplace safety responsibilities cannot be delegated away through subcontracting arrangements. Principal contractors must maintain active oversight of safety practices across all tiers of their subcontracting chains.

The case also highlights the importance of matching safety equipment to specific work tasks—while attachment points may dictate certain approaches, alternative methods using proper fall protection equipment should always be explored before resorting to inherently risky procedures.

The reduced penalty reflects both the Court’s recognition of genuine efforts to maintain safety standards and the value of early guilty pleas in demonstrating corporate responsibility for safety failures.