Citation: [2015] NSWDC 396
Court: District Court of New South Wales
Date: 18 August 2015
Judge: Kearns DCJ
Background
The defendants were a company operating a restaurant and its sole director. A worker named Anisha was injured on 1 January 2011 when a bain-marie burner pot was being refilled with methylated spirits, a flammable material with explosive potential. The injury occurred during the refilling process near ignition sources, rather than in a designated safe area.
The company had a system in place for operating bains-marie, but that system had not been extended to cover Anisha. The director maintained that bain-marie operation was not part of Anisha's duties, and so he provided her with no training, information, instruction, or direction. In practice, other staff had given her some informal guidance, but this fell outside any formal company system.
The defendants had previously been found guilty of offences under health and safety legislation following a judgment delivered on 5 February 2015. The matters came before Kearns DCJ for sentencing.
Legal Issues
- What was the appropriate penalty, having regard to the gravity of the offence, foreseeability of risk, and the measures available to avoid the risk?
- What weight should be given to specific and general deterrence in the context of a restaurant using flammable fuel for bain-marie heating?
- Were the defendants entitled to rely on remorse and contrition as mitigating factors?
- Could the defendants rely on their financial position under the Fines Act 1996 or seek a reduction in penalty to account for legal costs, where gaps remained in their financial disclosure?
Decision
Kearns DCJ found that foreseeability of risk was clearly established. The director knew of the dangers associated with methylated spirits and the risk of fire when refilling burner pots. That knowledge extended to the company. Readily available measures to address the risk included switching to fuel gel, providing documented risk assessments, and giving the injured worker specific training and direction.
The court accepted that a system existed for other staff, but found significant failures in its implementation. The system had not captured Anisha, permitted methylated spirits to be stored in the adjacent kitchen, and allowed burner pots to be filled at tables near ignition sources rather than in designated cages. The absence of oversight or supervision of the system was characterised as a matter of significant seriousness, particularly given the flammable and explosive nature of the material involved.
On specific deterrence, the court noted the company continued to operate and therefore deterrence remained relevant, though it was somewhat ameliorated by the prompt switch to fuel gel and improved safe work procedures following the incident. On general deterrence, while the prevalence of methylated spirits in bain-marie use may have declined with the availability of fuel gel, the court held that businesses using flammable materials still needed to be reminded of their statutory obligations.
The court gave little weight to the defendants' expressions of remorse. A written statement signed by the director, dated on the day the sentencing hearing was first listed, was found to come too late, was unsupported by other conduct, and was of questionable compliance with the statutory requirement under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 to show acceptance of responsibility. On financial hardship, the court found unexplained gaps in the evidence about staff numbers and payments, and declined to apply the Fines Act or reduce penalty to account for legal costs in those circumstances.
Orders Made
- The company fined $80,000, with a moiety (half) payable to the prosecutor.
- The director fined $8,000, with a moiety payable to the prosecutor.
- The company to pay the prosecutor's costs of $75,000.
- The director to pay the prosecutor's costs of $25,000.
Key Takeaways
- The District Court confirmed that foreseeability of risk in a workplace safety offence encompasses not only the likelihood of the risk occurring, but also the likelihood of serious injury if it did occur, assessed by reference to the defendant's actual knowledge.
- A system of work that exists in form but lacks oversight, supervision, or checking can still constitute a significant breach, particularly where flammable materials with explosive potential are involved and the system fails to capture all relevant workers.
- Late expressions of remorse, produced on the day of the sentencing hearing and unsupported by other conduct, were accorded minimal mitigating weight and were found to be of doubtful compliance with the statutory contrition requirement.
- Where defendants seek to rely on financial hardship under the Fines Act 1996, the onus rests on them to place complete and coherent financial evidence before the court. Unexplained gaps in disclosure about staffing and payments will defeat that reliance.
- Prompt remediation after an incident, including switching to a less dangerous fuel and implementing improved safety procedures, was treated as a mitigating consideration relevant to specific deterrence, though it did not override the seriousness of the underlying breach.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(3)(i)
- Fines Act 1996 (NSW)
Cases cited: No cases were cited in the provided judgment text.