Citation: WorkCover Authority of NSW v 4 Lift N Pty Ltd [2015] NSWDC 150
Court: District Court of New South Wales
Date: 7 July 2015
Judge: Kearns DCJ
Background
The defendant, a logistics company operated by a Mr Dacosta, was contracted to unpack a container of glass crates at a Chipping Norton site. The container was described as an open-top type, but its tarpaulin cover could not be removed. Unable to extract the crates from above as planned, Mr Dacosta improvised by using a borrowed 2-tonne forklift fitted with a sling to drag the crates horizontally along the container floor.
A worker, Mr Douaihy, was instructed to stand inside the container to steady the crates as they were dragged out. Mr Douaihy protested that the method was unsafe. Mr Dacosta repeated the instruction and told him it was safe. As one crate was being dragged out, it toppled, pinning Mr Douaihy against the container wall and causing serious injury.
After an ambulance took Mr Douaihy away, Mr Dacosta continued the unloading job. The container was then removed from the premises without WorkCover being notified and without the scene being preserved for inspection.
Legal Issues
- Whether the defendant breached its duty under s 19(1) of the Work Health and Safety Act 2011 by exposing Mr Douaihy to a risk of death or serious injury, contrary to s 32
- Whether the defendant failed to notify WorkCover of the incident immediately after becoming aware of it, contrary to s 38(1)
- Whether the defendant failed to ensure the incident site was not disturbed before inspection, contrary to s 39(1)
- The appropriate penalties for each offence, having regard to objective seriousness, specific and general deterrence, the victim impact statement, and the defendant's early guilty plea
Decision
On the principal safety offence (s 32): Kearns DCJ found the offence was objectively serious. The risk that a tall, heavy crate of glass would topple when dragged horizontally was, in the judge's words, "blindingly obvious." The foreseeability of serious or fatal injury was equally plain, and Mr Douaihy had directly flagged his safety concerns before the incident. The Australian Standard AS2359.2-1985 expressly prohibits using an industrial truck to drag a load horizontally, reinforcing the conclusion that the method was adopted with total disregard for safety. Preventive measures, such as providing lateral support or halting work until a safe procedure was devised, were readily available.
On deterrence: The defendant argued specific deterrence was unnecessary because lessons had been learned. Kearns DCJ rejected that submission. The evidence of post-incident remediation, a consultant's letter and a training certificate obtained by Mr Dacosta nearly a year after the incident, lacked sufficient detail to establish meaningful systemic change. The agreed statement of facts contained a heading about post-incident systems but was silent on their content. Both specific and general deterrence remained relevant sentencing factors.
On the notification and scene preservation offences (ss 38 and 39): The court accepted there was some substance to the argument that nothing was ultimately lost in this particular case. However, it rejected the proposition that these obligations can be bypassed whenever a person concludes that reconstruction will suffice. Allowing that reasoning would create a perverse incentive for businesses to continue work after incidents to avoid scrutiny. The court also noted that the failure to preserve the scene created genuine gaps in the evidence, including the inability to measure the container's orientation and inclination, or to examine whether the tarpaulin could have been removed.
On penalty: After considering the objective seriousness of the s 32 offence, the victim impact statement, the absence of prior convictions, and the defendant's cooperation and early guilty plea, the court imposed pre-discount fines of $80,000 (s 32), $10,000 (s 38(1)), and $10,000 (s 39(1)). A 25% discount was applied across all three fines for the early plea and cooperation.
Orders Made
- Conviction recorded on all three charges
- Fine of $60,000 imposed for the s 32 offence (reduced from $80,000 after 25% discount)
- Fine of $7,500 imposed for the s 38(1) offence (reduced from $10,000 after 25% discount)
- Fine of $7,500 imposed for the s 39(1) offence (reduced from $10,000 after 25% discount)
- A moiety (half) of each fine to be paid to the prosecutor
- Defendant to pay the prosecutor's costs of $20,000 (agreed sum)
Key Takeaways
- The District Court confirmed that the risk of a tall, heavy crate toppling when dragged horizontally was so obvious that it demanded immediate recognition as a serious safety hazard, and the existence of an applicable Australian Standard reinforced that conclusion.
- Under ss 38(1) and 39(1) of the Work Health and Safety Act 2011, the obligations to notify the regulator and preserve the incident site are not discharged simply because an employer believes reconstruction will capture all relevant evidence; the purposes of those provisions extend beyond any individual case.
- Post-incident remediation evidence carries limited mitigating weight where it lacks specificity: vague references to a consultant engagement and a training certificate without detail of content did not satisfy the court that systemic change had occurred.
- A 25% discount on sentence was available for an early guilty plea and cooperation with the prosecution, applied consistently across all three charges.
- The victim impact statement, while not directly translating to additional penalty, served as a concrete illustration of the foreseeable human consequences of exposing a worker to an obvious and preventable risk.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 38(1), 39(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Standards:
- Australian Standard AS2359.2-1985 (industrial trucks)
Cases: No specific cases were cited by the court in the portions of the judgment provided.