Citation: Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex No 2 [2017] NSWDC 20
Court: District Court of New South Wales
Date: 21 February 2017
Judge: Judge AC Scotting
Background
A transport company operating freight depots across regional New South Wales and Queensland faced sentencing after being found guilty at trial of an offence under section 32 of the Work Health and Safety Act 2011. The charge arose from a serious workplace injury at the company's Beresfield depot in the early hours of 28 February 2014.
The injured worker, a truck driver employed by a third party labour hire arrangement, arrived at the depot to deliver freight. As a forklift operator employed by the defendant company began unloading the semi-trailer, the truck driver assisted by unsecuring the load. While standing within approximately two metres of the operating forklift, he was struck in the head by a cage door that became dislodged when the forklift removed a freight cage from the trailer's mezzanine level.
The truck driver sustained a depressed skull fracture and traumatic brain injury classified in the extremely severe range. His ongoing injuries include moderately severe memory loss, marked impairment of emotion, behaviour and recognition, right-sided deafness, dental injuries, lower back injury, and psychological conditions including anxiety and depression.
Legal Issues
- Whether the sentence imposed should reflect the objective seriousness of the offence and the applicable maximum penalty of $1.5 million
- What weight to give to aggravating factors, including the defendant's prior knowledge of the risk and the failure to implement a known and available safe system of work
- What mitigating factors were established, including remorse, cooperation, good character, and post-incident remediation
- How the principles of specific and general deterrence applied to a corporate offender in a work health and safety context
- Whether the defendant's capacity to pay and the totality of the penalty (including costs) were relevant considerations
Decision
The court found that the offending was serious. The defendant had actual knowledge of the relevant risk no later than May 2013, and had been on notice of available control measures at least from that point. A draft Safe Work Method Statement containing the required measures existed from May 2013 but was never implemented before the incident. An earlier 2010 Safe Work Method Statement required a five-metre pedestrian exclusion zone around operating forklifts but was expressed in ambiguous terms, workers were not trained on it, and it was not enforced.
Judge Scotting identified the failure to secure the cage doors as a separate contributing cause, alongside the broader failure to implement and enforce a Traffic Management Plan incorporating a pedestrian exclusion zone and a designated truck driver safety zone. The risk was known to the industry and to the defendant specifically, making the failure to act before the incident a significant aggravating feature.
On the mitigating side, the court accepted that the defendant had demonstrated genuine remorse and contrition, cooperated with the SafeWork investigation, and responded swiftly and thoroughly after the incident. Post-incident remediation included adoption of a revised Safe Work Method Statement, installation of blue-light forklift exclusion zone technology, CCTV monitoring programs, online induction systems, chaining of cage doors, and significant capital expenditure on traffic management across multiple depots. The defendant was also found to be a person of good character, having provided charitable and community services at material cost.
The court imposed a fine of $220,000 out of a maximum of $1.5 million, with 50 per cent payable to the prosecutor under the Fines Act 1996.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $220,000 was imposed, with 50 per cent of the fine to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $82,000
Key Takeaways
- A corporate defendant's actual prior knowledge of both the risk and available control measures, combined with a failure to implement those measures before the incident, constitutes a significant aggravating factor in WHS sentencing.
- Under section 32 of the Work Health and Safety Act 2011, the maximum fine for a corporation is $1.5 million; the fine of $220,000 imposed here reflected substantial mitigation against what the court treated as a serious instance of offending.
- Swift and genuine post-incident remediation, including capital investment in safety technology and revised training systems, can carry real mitigating weight in WHS prosecutions, but does not displace the significance of pre-incident failures.
- Genuine remorse, cooperation with the regulator, and good corporate character (including charitable activities) are all relevant mitigating considerations under the Crimes (Sentencing Procedure) Act 1999 for corporate offenders.
- Where a safe system of work existed in draft form and was never implemented, the gap between knowledge and action is treated as central to assessing the objective seriousness of the offence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(h), 21A(3)(i), 21A(3)(m)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- SafeWork NSW v Tamex Transport Services Pty Limited [2016] NSWDC 295 (the earlier guilty verdict in the same proceedings)