Citation: [2016] NSWDC 111
Court: District Court of New South Wales
Date: 8 June 2016
Judge: Kearns DCJ
Background
Pickles Auctions Pty Limited was a large auction and valuation business operating 22 sites across Australia, including two in New South Wales. In March 2013, workers at the company's Milperra site were tasked with unloading a heavy metal cabinet (weighing approximately 320 kilograms) from the bed of a truck. The appropriate equipment for the task was a five-tonne forklift, a fact known to supervisors but never communicated to the workers on the ground.
A 19-year-old worker with less than one month's employment, Jonathan Webster, was left unsupervised and uninstructed at the wash bay area. After waiting approximately ten minutes with no guidance, he enlisted the help of a colleague, Dean Jeffs, who was operating a seven-tonne forklift. The tynes of that forklift were too large for safe use on the task. In attempting to tilt the cabinet from the truck bed onto the forklift tynes, the cabinet slipped and fell. Dean Jeffs sustained fatal injuries. Jonathan Webster sustained injuries to his chest, shoulder, arm and knee.
Pickles pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011, admitting that it had failed to comply with its primary duty of care under section 19 of that Act, thereby exposing both workers to a risk of death or serious injury.
Legal Issues
- Whether the offence was of high objective gravity, having regard to the foreseeability of the risk, the foreseeability of the consequences if the risk materialised, and the availability of simple preventive measures
- What weight to give mitigating factors, including the guilty plea, cooperation with the regulator, post-incident remediation, and the company's size and financial position
- What weight to give aggravating factors, including the prior conviction for a forklift-related incident and the need for general and specific deterrence
- What fine was appropriate after applying the relevant discount for the guilty plea
Decision
Kearns DCJ assessed the objective gravity of the offence as high. The risk of injury from moving a 320-kilogram cabinet without proper equipment was plainly foreseeable, as was the potential for death or serious injury if that risk materialised. Supervisors had already identified that a five-tonne forklift was required, yet that critical information was never passed to the worker tasked with the job. Simple measures, including directing the worker not to attempt manual handling, enforcing an exclusion zone, and ensuring the correct forklift was available before work began, were readily available and not taken.
His Honour rejected the submission that this was merely an isolated failure in an otherwise sound system. The failure to supervise a young, inexperienced worker who was left without instruction or appropriate equipment was a serious breach. However, mitigating factors were recognised: the guilty plea, cooperation with SafeWork NSW's investigation, steps taken after the incident to prevent recurrence, an expression of remorse, and the company's otherwise good safety record at the site.
A prior conviction involving a forklift incident, approximately ten years earlier, was treated as relevant to specific deterrence. The need for general deterrence was also emphasised, with the court observing that forklift accidents causing fatalities remain far too prevalent in Australian workplaces. The victim impact statement from Mrs Jeffs was considered for the purpose of demonstrating the profound effect of the incident on the family.
Kearns DCJ set a base fine of $300,000, reflecting the high objective gravity of the offence alongside the mitigating factors. A discount of 15 per cent was applied for the guilty plea, producing a final fine of $255,000.
Orders Made
- The offender, Pickles Auctions Pty Limited, was convicted of the offence charged
- A fine of $255,000 was imposed
- A moiety (half the fine) was ordered to be paid to the prosecution
- The offender was ordered to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- A failure to communicate critical safety information to an inexperienced, unsupervised worker, even where supervisors themselves understood the correct procedure, was found to place the objective gravity of the offence at a high level under the Work Health and Safety Act 2011.
- The District Court confirmed that foreseeability of both the risk and its consequences is assessed objectively: where supervisors had already identified the correct equipment, the risk of a worker improvising without that equipment was plainly foreseeable.
- A prior conviction for a forklift-related incident, even one approximately a decade old, remained a relevant consideration going to specific deterrence, particularly where the offender continued to operate forklifts across its sites.
- General deterrence carried significant weight in sentencing: the court emphasised the continuing prevalence of fatal forklift incidents in Australian workplaces as a reason for meaningful financial consequences.
- Post-incident remediation, cooperation with the regulator, and a guilty plea collectively reduced the base fine, demonstrating that those factors remain relevant to the final penalty even in cases of high objective gravity.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19 and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
No specific cases were cited in the provided judgment text.