Citation: Workcover v Brandown Pty Ltd [2015] NSWDC 261
Court: District Court of New South Wales
Date: 27 April 2015
Judge: Judge AC Scotting
Background
The defendant, a dirt and brick recycling company operating out of Kemps Creek, employed approximately 35 workers and 10 contractors at its site. One of those employees, a plant operator with 12 to 14 months of service, was assigned on 22 August 2011 to operate a combined conveyor and grading plant in an area of the site he had never worked in before.
When one of the conveyors became blocked, the plant was stopped using a neutral lever control rather than a full isolation procedure. While the employee cleared material near the tail drum by hand, the conveyor unexpectedly restarted and his right arm was drawn into the machinery. He sustained crush injuries, severe lacerations, and a fracture requiring surgical plating.
The defendant's own investigation identified three contributing causes: the tail drum guard on the M40 conveyor had been removed and was not replaced; the conveyor had not been properly isolated before work commenced; and no specific safe work procedure existed for the combined plant. The employee had received no job-specific training or safety information for that equipment.
Legal Issues
- Whether the defendant, as an employer, failed to ensure the health, safety and welfare of its employee in breach of section 8(1) of the Occupational Health and Safety Act 2000 (NSW)
- What constituted the appropriate penalty, having regard to objective seriousness, mitigating and aggravating factors, capacity to pay, and the utilitarian value of an early guilty plea
- What costs order was appropriate
Decision
The defendant pleaded guilty to the charge at the earliest opportunity. The court accepted the agreed statement of facts, which established multiple overlapping failures: the guard had been removed from the tail drum and its absence went undetected because daily machine inspection reports were not being completed or supervised; the conveyor was not isolated before manual clearing work began; the foreman left the immediate work area to take a phone call; and the employee had no job-specific training for the plant.
In assessing objective seriousness, the court noted the guard had likely been missing for around a week before the incident, the control panel labelling was incomplete and misleading, there were no emergency stop buttons on the M40 conveyor, and no risk assessment was conducted on the day. The court characterised the combination of these deficiencies as placing the matter at a moderate level of objective seriousness, given the maximum penalty of $550,000.
On mitigating factors, the court took into account the defendant's early guilty plea, co-operation with the investigation, compliance with all prohibition and improvement notices, remediation work (including fitting guards and signage at around $10,000 and revising its safety management plan), and an unblemished prior record. The court also accepted that the circumstances giving rise to the offence, primarily linked to the sporadic use of the combined plant, reduced the risk of reoffending. Specific deterrence was therefore not a significant consideration, though general deterrence remained relevant.
The court fixed a base fine of $120,000, reflecting the objective seriousness and the need for general deterrence, then applied a 25% discount for the early guilty plea, arriving at a final fine of $90,000. The defendant did not put on any evidence about its financial capacity, so the court declined to reduce the fine on that basis.
Orders Made
- The defendant was convicted and fined $90,000.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $37,000.
Key Takeaways
- The District Court treated the concurrent failures of guard removal, inadequate isolation, undocumented induction, and absent supervision as collectively establishing a moderate level of objective seriousness, even where the maximum penalty was $550,000.
- A 25% discount on penalty was applied for a guilty plea entered at the earliest opportunity, consistent with the guidance in R v Thomson & Houlton and R v Borkowski, with the timing of the plea being the primary factor in fixing the discount within the 10 to 25% range.
- Where a defendant seeks a reduced fine on the basis of limited financial capacity, the evidentiary onus rests on the defendant to put material before the court; failing to do so will leave the court unable to exercise any discretion to reduce the amount.
- Remediation steps taken after an incident, including compliance with regulatory notices, installation of guarding, and revision of safety management plans, are relevant mitigating factors that a sentencing court will weigh.
- Under section 8(1) of the Occupational Health and Safety Act 2000, an employer's liability encompassed not only the physical condition of machinery, but also the adequacy of supervision, training, and safe work procedures for employees working in unfamiliar areas on unfamiliar equipment.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000 (NSW) ss 8(1), 12(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 22
- Fines Act 1996 (NSW) ss 6, 122(2)
- Occupational Health and Safety Regulations 2001 (NSW)
- Work Health and Safety Act 2011 (NSW)
- Mines Inspection Act 2001 (NSW)
- Australian Standard AS1755 (conveyor safety requirements)
Cases
- Veen v R (No 2) (1988) 164 CLR 465
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432