Citation: WorkCover Authority of NSW (Inspector Glassington) v Graffica Pty Ltd [2012] NSWDC 311
Court: District Court of NSW
Date: 29 November 2012
Judge: Curtis J
Background
The defendant was a small company that imported and supplied machinery to the printing industry. It sourced a "clamshell" machine from a Chinese manufacturer and supplied it to a printing business. The machine operated by raising a moveable platen (a flat pressing plate) through a wide arc to meet a fixed vertical platen, crushing or creasing material placed between them. The arc of movement was unguarded.
On 22 October 2010, a worker at the printing business reached into the machine to make an adjustment. The moveable platen rose and crushed him against the static platen, killing him.
The defendant pleaded guilty to two charges under the Occupational Health and Safety Act 2000: failing to provide adequate safety information about the plant to the recipient of the supply (s 11(1)(b)), and supplying plant that was not safe for use (s 11(1)(a)). The sentencing hearing concerned the appropriate penalties for both offences.
Legal Issues
- What fine was appropriate for the s 11(1)(b) offence of failing to provide adequate safety information, having regard to objective seriousness, culpability, subjective factors, parity, and the company's financial position?
- Whether any additional penalty was warranted for the s 11(1)(a) offence of supplying unsafe plant, given that it arose from substantially the same failures.
Decision
Issue 1: Objective seriousness and culpability
Curtis J found that the objective seriousness of the offending was grave: a young man had lost his life. The core failure was that the defendant had not commissioned an expert risk assessment before supplying the machine. Had it done so, the assessor would have identified the need for a pressure mat, light beam, or fixed guard over the arc of movement. That step would not have added significantly to costs.
Despite the gravity of the outcome, his Honour assessed culpability as moderate rather than high. The director and sole shareholder had extensive personal experience with this type of machine, had taken a number of precautionary steps (including arranging a warning light, drafting safety instructions, and directing his contractor and engineer to address safety matters), and had received informal assurances from a Melbourne client that WorkSafe Victoria had cleared a comparable machine. The particular danger had not been identified by the director personally, nor apparently by other users of such machines across New South Wales.
Issue 2: Specific deterrence, subjective factors, and parity
His Honour saw no need for specific deterrence: the director was now aware of the danger and of the need to conduct risk assessments on all imported machines. The company's recognition of the need to improve its procedures was weighed in its favour. On parity, Curtis J accepted that the supplying business was less culpable than the recipient printing business, which had also failed to maintain the machine in safe condition, had removed an overhead guard, and had been in a position to observe the working conditions on the factory floor and take protective steps.
Issue 3: Financial capacity
The company had negligible assets and limited earning capacity. His Honour fixed the fine at a level he considered within the company's capacity to pay, but below the threshold that would cause immediate insolvency and potential reincorporation of the business under another name.
Issue 4: Second charge (s 11(1)(a))
Curtis J found that the failures underlying the s 11(1)(a) charge were substantially identical to those already punished under s 11(1)(b). Accordingly, the defendant was convicted of that offence but no additional penalty was imposed.
Orders Made
- Defendant convicted of the s 11(1)(b) offence and fined $50,000
- Order that 50 per cent of the fine (a "moiety") be paid to WorkCover
- Costs order in favour of WorkCover in the sum of $22,000 (by agreement)
- Defendant convicted of the s 11(1)(a) offence; no further penalty imposed
Key Takeaways
- A supplier of industrial plant can be liable under the Occupational Health and Safety Act 2000 for failing to advise the recipient of foreseeable dangers, even where the supplier had taken a number of informal safety precautions and received reassurances from others.
- The absence of a formal expert risk assessment before supply was identified as the central failure: commissioning such an assessment would have revealed the need for physical guarding and would have discharged the duty to inform.
- Culpability was assessed as moderate, not high, because the specific danger had not been widely identified in the industry and the director had made genuine, if ultimately insufficient, efforts to address safety.
- Parity between co-offenders was relevant: the District Court accepted that a supplier is generally less culpable than the operator who controls the working environment and can observe hazards in day-to-day use.
- Where two charges arise from substantially the same factual failure, a court may convict on both but impose no additional penalty for the second offence.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated