Citation: Workcover Authority of New South Wales v Limerick Billbergia Pty Ltd [2014] NSWDC 195
Court: District Court of New South Wales
Date: 7 July 2014
Judge(s): Curtis DCJ
Background
The defendant, a construction employer, pleaded guilty to a charge under s 8(1) of the Occupational Health and Safety Act 2000. The charge arose from an incident on 19 January 2011 at Australia Avenue, Sydney Olympic Park, when one of its employees was seriously injured during a lifting operation.
The employee, a worker on the site, was crushed between a bundle of safety screens and a fence when the screens fell during a crane lift. The bundle was approximately 14 metres long and 3 metres wide. He suffered a spinal fracture, a ruptured patella tendon, and a penetrating wound to his left knee. The court noted it was fortunate he was not killed.
The accident occurred because the screens were lifted using hooks attached to reinforced steel rods (known as Z bars) that were not capable of bearing the load. A dogman on the site had initially attempted to use slings, recognised they were unsuitable, and sought advice from the defendant's site manager, a qualified engineer. On the suggestion of a subcontractor, and with the engineer's concurrence, the Z bar method was adopted. That decision proved to be the critical failure.
Legal Issues
- Whether the defendant's conduct constituted a breach of s 8(1) of the Occupational Health and Safety Act 2000 (resolved by guilty plea)
- The appropriate penalty, having regard to the degree of culpability, mitigating factors, and sentencing purposes including general and specific deterrence
Decision
Issue 1: Culpability
Curtis DCJ found that the departure from a reasonable standard of care was significant. Three specific failures were identified: the failure to calculate the load before lifting; the failure to return the load to the supplier for repositioning with appropriate apparatus; and the failure to keep the injured employee clear of the lift zone.
The defendant had a safe working method statement that required the dogman to calculate loads and ensure no person was positioned where they could be crushed by unexpected load movement. That statement had been brought to the dogman's attention and was ignored. The site manager, as a qualified engineer and the person who concurred with the unsafe method, was treated as the embodiment of the defendant's culpability for this operation.
The defendant sought to reduce its culpability on the basis that the screens had been inappropriately packed by the supplier. Curtis DCJ accepted this was a contributing circumstance but found it reduced the defendant's culpability only minimally. The engineer's role was to respond to the problem, and his response was inadequate.
Issue 2: Mitigating Factors and Penalty
The court accepted that the defendant was not generally indifferent to safety. It employed safety officers and had commissioned appropriate safe working method statements for its activities. These subjective factors were weighed in the defendant's favour.
The maximum penalty under the Act was $550,000. Curtis DCJ imposed a base penalty of $150,000, then discounted it for the guilty plea and the defendant's cooperation with WorkCover. The final fine was $110,000.
Orders Made
- The defendant is convicted.
- The defendant is fined $110,000.
- A moiety (half) of the fine is to be paid to WorkCover.
- The defendant is to pay the costs of the prosecution, as agreed or assessed.
Key Takeaways
- A guilty plea combined with cooperation with the prosecuting authority produced a discount from a $150,000 base penalty to a final fine of $110,000, against a maximum of $550,000 under the Occupational Health and Safety Act 2000.
- The District Court treated the engineer-site manager's concurrence with an unsafe lifting method as the act of the defendant itself, applying the principle that a senior employee responsible for an operation can be treated as the company's embodiment for culpability purposes.
- Having a safe working method statement in place does not, of itself, reduce an employer's culpability where that statement is available but ignored at the operational level.
- A contributing role by a third party (here, the screen supplier's inadequate packing) was found to reduce the employer's culpability only minimally where the employer's own personnel recognised the problem and responded inadequately.
- General deterrence and denunciation were treated as significant sentencing considerations where a worker suffered serious injuries that could readily have been fatal.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated