Citation: WorkCover Authority of NSW v Gordon & Gotch Australia Pty Ltd [2014] NSWDC 376
Court: District Court of NSW
Date: 7 October 2014
Judge: Curtis J
Background
The defendant company operated a magazine distribution warehouse at Moorebank, NSW. On 29 October 2010, two delivery drivers attended the site simultaneously. One driver, who had not visited the premises before, parked his van at right angles to the designated unloading area without receiving a site induction. The other driver, a regular visitor, parked his flat-top truck in the designated unloading area behind the first van.
While the regular visitor stood behind his truck to lower its gates for forklift access, the first driver reversed his van in a circular motion without seeing the other truck. The van struck the regular visitor, pinning him between the two vehicles. He died from his injuries that night.
WorkCover NSW prosecuted the defendant company for failing, under the Occupational Health and Safety Act 2000, to ensure that a person not in its employment was not exposed to a risk to his health or safety. The defendant pleaded guilty. The proceedings before Curtis J concerned the appropriate sentence.
Legal Issues
- What fine was appropriate under the Occupational Health and Safety Act 2000, having regard to the gravity of the offence, the degree of corporate culpability, and the defendant's subjective circumstances?
- What weight should be given to general deterrence, specific deterrence, and denunciation in setting the penalty?
- What discount applied for the defendant's early guilty plea and cooperation with authorities?
Decision
Curtis J identified two principal systemic failures by the defendant. First, no "No Parking" signs were erected to prevent vehicles parking outside the designated unloading area. Second, no spotter or marshal was stationed to guide drivers reversing on site. The court accepted that a one-way traffic system does not eliminate the occasional need for vehicles to reverse, and that those responsible for the system should have anticipated this.
The court also found that the defendant's employee, Mr Matepi, bore significant responsibility for the death. He had failed to direct the visiting driver to the correct parking area, failed to conduct an induction before unloading the van, and failed to ensure only one truck was unloaded at a time. These were departures from a traffic management plan Mr Matepi knew well.
However, the court placed those individual failings in context. The defendant had developed a detailed traffic management system, held regular toolbox talks and safety committee meetings, conducted monthly safety walks, and had no prior convictions over 39 years of operation. Its spending on occupational health and safety was approximately $1,271 per employee. Curtis J characterised the systemic failure as one of "inadversion and imagination" rather than any disregard for safety, and noted that the degree of corporate culpability was moderated by the fact that the fault lay principally with a subordinate employee rather than senior management.
Taking into account the maximum penalty of $550,000, the need for general deterrence, and the death of the victim, Curtis J assessed the appropriate penalty at $150,000 before discount. A 25 per cent reduction was applied for the early guilty plea and cooperation, producing a fine of $112,500.
Orders Made
- The defendant was convicted and fined $112,500.
- A moiety (half) of the fine was remitted to WorkCover NSW.
- The defendant was ordered to pay WorkCover NSW's agreed costs of $27,000.
Key Takeaways
- Under the Occupational Health and Safety Act 2000, a corporation can be convicted for failing to protect the safety of persons who are not its employees, including independent contractors and visitors to its premises.
- The District Court confirmed that corporate culpability in a workplace fatality is assessed by reference to how far the defendant's conduct departed from that of a reasonable person, not solely by the severity of the outcome.
- The seniority of the employee responsible for the failure is a relevant factor in assessing the degree of corporate blameworthiness: a failure by a subordinate, against the backdrop of conscientious senior management attention to safety, carries less weight than a failure at a higher level.
- Erecting adequate signage and providing spotters or marshals for reversing vehicles were identified as specific, foreseeable precautions that a reasonable occupier of a busy distribution site should have in place.
- A 25 per cent discount from the assessed penalty applied because of the defendant's early guilty plea and cooperation with the prosecuting authority.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
Cases cited: No cases were cited in the judgment.