Citation: WorkCover v Everwilling Cranes Pty Ltd [2014] NSWDC 379
Court: District Court of NSW
Date: 7 October 2014
Judge: Curtis J
Background
Everwilling Cranes Pty Ltd, a provider of mobile cranes, was engaged through a chain of subcontractors to install approximately 121 precast concrete panels at a substation construction site in Granville. The company's general manager attended the site and prepared a safe work statement in consultation with the other subcontractors, Hanson Precast and Cross Lift. He was told the weight of the panels but was not informed that some panels would need to be rotated before installation.
On 29 October 2010, Everwilling's crane operator and a dogman discovered that the delivered panels required rotation, a contingency not covered by the safe work statement. Acting contrary to their training and instructions, the two men used the crane's auxiliary hoist to lift and rotate the panels. In doing so, they overloaded the auxiliary hoist by approximately 51% of its safe working capacity.
The overload caused the crane's sheave to fail. The wire rope of the auxiliary hoist was severed, lashing out and striking worker Mr Borg on the shoulder. Part of the sheave was explosively ejected, narrowly missing Mr Walker, a leading hand employed by the principal contractor. Both men faced a real risk of serious injury or death. Everwilling pleaded guilty to failing to ensure that persons not in its employment were not exposed to risks to their health and safety, in contravention of s 8(2) of the Occupational Health & Safety Act 2000.
Legal Issues
- What was the appropriate finding as to the objective seriousness of the offence, having regard to the foreseeability of the risk, the degree of danger, and the ease with which it could have been avoided?
- How should the culpability of the company's employees be attributed to the defendant employer for sentencing purposes?
- What weight should be given to specific and general deterrence in setting the penalty?
- What discount, if any, should be applied to the base penalty for subjective factors including remorse, contrition, and cooperation with WorkCover?
Decision
Objective seriousness. Curtis J accepted that the risk of serious injury was real and that the forces involved made that obvious in hindsight. However, the court did not accept the prosecution's submission that the risk was eminently foreseeable by the general manager at the time he prepared the safe work statement. Mr Henderson had not been told rotation was required, and on previous jobs the subcontractors had always flagged this requirement. The court found that by pleading guilty, Everwilling accepted that Mr Henderson should have made further enquiries rather than assuming the client would raise the issue, but this fell well short of deliberately courting risk or ignoring safety altogether.
Employee culpability and attribution. The court drew a clear distinction between the relatively low culpability of Mr Henderson and the high personal culpability of the crane operator and dogman. Those two employees had been trained, inducted into the safe work system, and specifically instructed to stop work and report any deviation. They ignored those instructions. The court held that because Mr Henderson had done everything a reasonable employer could do by requiring employees to report departures, and because the two employees occupied relatively junior positions in the company's hierarchy, the extent to which their conduct could be attributed to the company was moderated.
Deterrence and subjective factors. The court found general deterrence remained an important consideration given the inherent danger of crane operations involving heavy loads. However, it found there was no significant need for specific deterrence. Everwilling had a safety system in place before the incident, had strengthened that system afterwards by assigning an OHS officer to assess rotation requirements for all slab lifts, had expressed genuine remorse, cooperated with WorkCover, and had a commendable (if not perfect) safety record over nearly two decades in a high-risk industry.
Penalty. The court set a base penalty of $120,000 against a maximum of $825,000. A 25% discount was applied for remorse, contrition, and cooperation with the prosecution, producing a final fine of $90,000. The court also ordered the defendant to pay prosecution costs of $25,000 and did not treat that costs order as a reason to reduce the fine.
Orders Made
- Everwilling Cranes Pty Ltd convicted and fined $90,000.
- WorkCover to receive half of the fine (moiety).
- Everwilling Cranes Pty Ltd to pay prosecution costs of $25,000.
Key Takeaways
- The District Court applied a nuanced assessment of foreseeability, finding that a general manager who prepared a safe work statement based on information provided by the client was not highly culpable simply because he failed to ask a question the client had always previously volunteered.
- Where employees act in direct contravention of their training and specific instructions, the degree to which their conduct is attributed to the employer for sentencing purposes is moderated by their position in the company's hierarchy and the adequacy of the employer's supervisory framework.
- A guilty plea, genuine post-incident remediation, and a history of safety-conscious conduct in a high-risk industry can meaningfully reduce penalty, but these factors do not displace the need for general deterrence in industries involving heavy machinery and dangerous loads.
- Under the Occupational Health & Safety Act 2000, the maximum penalty available against a corporation was $825,000; the final fine of $90,000 reflected the court's assessment that this was a case of moderate objective seriousness at the lower end of the culpability range.
- Prosecution costs of $25,000 were ordered separately from the fine and the court declined to offset them against the penalty amount.
Legislation and Cases Referenced
Legislation:
- Occupational Health & Safety Act 2000 (NSW), s 8(2)
Cases cited: No cases were cited in the judgment.