Citation: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151
Court: District Court of New South Wales
Date: 25 March 2015
Judge: Kearns DCJ
Background
The defendant, a grain storage and handling contractor, operated at the Boolcarrol Grain Storage Depot in Wee Waa under a contract with GrainCorp, which leased the site. The defendant employed roughly 12 permanent workers and up to 50 casual workers during harvest. It was responsible for the day-to-day management of receiving and outloading grain, while GrainCorp retained overall site management responsibility and supplied plant and equipment.
On 19 February 2013, a casual worker (referred to in these proceedings as Mr Smith) was directed to sweep spilled grain in a bunker area while a front-end loader operated nearby. The site supervisor instructed Mr Smith to sweep between loads when he felt it was safe to do so, then drove approximately 250 to 300 metres away. While reversing and turning toward a grain hopper, the loader operator struck Mr Smith. The rear tyre of the front-end loader ran over Mr Smith's torso, causing fatal injuries.
The defendant pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011, having failed to ensure so far as reasonably practicable the health and safety of workers engaged by it, where that failure exposed Mr Smith to a risk of death or serious injury.
Legal Issues
- Whether the defendant's systems and procedures were adequate to discharge its duty under s 19(1) of the Work Health and Safety Act 2011
- What penalty was appropriate having regard to the objective seriousness of the offence, the foreseeability and preventability of the risk, and the specific facts of the breach
- What weight to give mitigating factors including an early guilty plea, absence of prior convictions, post-incident remediation, remorse, and good corporate character
- Whether victim impact statements could be considered, and to what extent
- Whether any discretion under the Fines Act should be exercised to reduce the fine
Decision
Kearns DCJ convicted the defendant following its guilty plea. The court found the risk of a collision between the front-end loader and a worker on foot was plainly foreseeable and preventable. The defendant had failed to conduct a proper risk assessment, failed to prepare a traffic management plan specific to bunker operations, and had no safe work instructions in place for front-end loaders. While the defendant had an induction booklet and held toolbox talks, those measures were inadequate: the toolbox talks contained identical, formulaic entries across all ten records tendered, and no site-specific risk assessment had been completed before work commenced on the day of the incident.
On objective seriousness, the court noted the absence of basic safeguards including exclusion zones, a spotter, or an electronic communication system, despite the obvious danger of mobile plant operating in proximity to workers on foot. The court acknowledged that the victim's supervisor had given the instruction placing Mr Smith near the loader, but this did not diminish the defendant's primary responsibility to have systems in place that prevented such an arrangement from arising.
In mitigation, the court accepted the early guilty plea and applied a discount in the high range of what is normally permissible. The court also credited the defendant's genuine remorse, absence of prior convictions, implementation of improved safety practices after the incident, and good corporate character. Victim impact statements were received but could be taken into account only insofar as the harm to affected individuals reflected harm to the community generally.
The defendant submitted that the court should exercise discretion under the Fines Act, citing the loss of its GrainCorp contract following the incident (said to be worth approximately $500,000 per year). The court declined to exercise that discretion. No balance sheet, profit and loss statement, or tax return had been produced, and there was no adequate evidentiary basis on which to assess the defendant's financial position.
Orders Made
- The defendant was convicted of the offence charged under ss 19(1) and 32 of the Work Health and Safety Act 2011
- The defendant was fined $250,000, with a moiety (half) of the fine payable to the WorkCover Authority of New South Wales
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $22,500
Key Takeaways
- The District Court confirmed that a Category 2 offence under the Work Health and Safety Act 2011 is established where a business fails to implement basic risk controls, such as a traffic management plan or exclusion zones, and that failure exposes a worker to a foreseeable risk of death or serious injury.
- Formulaic or repetitive safety documentation, including toolbox talk records that are word-for-word identical across multiple sessions, carries little weight in demonstrating a genuine, site-specific approach to risk management.
- Where a defendant seeks a reduced fine on capacity-to-pay grounds under the Fines Act, bare assertions about contract loss are insufficient; the court will require substantive financial evidence such as balance sheets, profit and loss statements, or tax returns.
- A guilty plea, genuine remorse, absence of prior convictions, and post-incident safety improvements can collectively attract a discount in the high range, but these factors do not displace the need for meaningful punishment to reflect specific and general deterrence.
- The court made explicit that the quantum of a work health and safety fine bears no relationship to the value of the deceased worker's life, and that even the maximum penalty could not address that loss.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act (NSW) (specific section not identified in the judgment)
Cases cited: No cases were cited in the portions of the judgment provided.