Citation: Workcover v Max Tse [2014] NSWDC 229
Court: District Court of New South Wales
Date: 26 March 2014
Judge: Judge MJ Finnane QC
Background
The defendant was a small business operator who had engaged several Chinese international students to assist with garden maintenance work at a private residence in Epping. One of those workers, a Macquarie University student, suffered a serious leg injury while the defendant was operating a hired SG350 stump grinder.
The stump grinder was a petrol-powered machine with a large rotating blade at the front. The manufacturer's instructions, which the defendant had downloaded, stated the machine should only be used on level ground. The defendant was attempting to use the machine on a slope near a concrete wall, and had directed the injured worker to place bricks under the machine's wheels to stabilise it.
The injury occurred when the worker walked in front of the operating machine and his loose trouser leg was caught by the rotating blade. The defendant had supplied the worker with loose plastic overtrousers as wet-weather gear. There was a factual dispute between the defendant and the injured worker about precisely what the worker was doing at the moment of injury, which the court was required to resolve.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, had breached his duty under section 19 of the Work Health and Safety Act 2011 to ensure the health and safety of workers engaged by him
- Whether the breach exposed the worker to a risk of death or serious injury, constituting a category 2 offence under section 32 of the Act
- What penalty was appropriate, having regard to the defendant's financial circumstances and the requirements of section 6 of the Fines Act 1996
Decision
The court resolved the factual dispute in the defendant's favour. Applying the criminal standard of proof, the court was not satisfied beyond reasonable doubt that the injured worker's account was more accurate than the defendant's. The court accepted that the machine was already operating when the worker walked in front of it without being asked to do so, rather than that the worker was acting on instructions at the time.
Despite accepting the defendant's account, the court found the offence proved. The defendant's duty under the Act required him to warn the worker about the dangers of the machine, including the risk of the rotating blade, and to give the worker a clear instruction not to move forward of the defendant while the machine was operating. These were simple steps the defendant had not taken.
The court rejected the argument that the danger was so obvious it required no warning. The duty to ensure worker safety encompasses the possibility that workers may not act sensibly, even where hazards appear self-evident to the person in charge. The defendant's genuine belief that no one would walk in front of an operating blade did not absolve him of liability.
On penalty, the court took into account the defendant's financial circumstances: he had not been working for some months, was dependent on a friend for support, and had two sons to maintain. Having regard to section 6 of the Fines Act 1996, which requires a court to consider the means of the accused, the court imposed a fine of $500 plus the costs of the prosecution, noting that the maximum penalty of $300,000 would be reserved for very serious offending.
Orders Made
- The defendant was convicted of the offence
- A fine of $500 was imposed
- The defendant was ordered to pay the prosecution's costs, to be assessed
Key Takeaways
- Under section 19 of the Work Health and Safety Act 2011, a person conducting a business or undertaking bears a positive duty to ensure worker safety that extends beyond avoiding obvious foreseeable risks; it includes giving explicit safety instructions even where the danger may appear self-evident.
- The District Court held that a defendant's honest belief that a hazard was obvious to any reasonable person does not discharge the statutory duty to warn workers and provide clear instructions about safe conduct around dangerous machinery.
- Where a factual dispute arises between the prosecution's witness and the defendant in a criminal proceeding, the court applies the criminal standard: the defendant receives the benefit of the doubt unless the prosecution's account is established beyond reasonable doubt.
- A conviction under section 32 of the Act (category 2 offence) does not require proof that the defendant foresaw the specific manner in which a worker would be injured; proof that the failure exposed a worker to a risk of serious injury is sufficient.
- Section 6 of the Fines Act 1996 requires a sentencing court to have regard to the financial means of the defendant; here, the court imposed a significantly reduced fine reflecting the defendant's unemployment and family obligations rather than applying the $300,000 statutory maximum.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Fines Act 1996 (NSW), s 6
Cases cited: None recorded in the judgment.