Citation: Safe Work NSW v Grip Asia Pacific Pty Ltd [2017] NSWDC 210
Court: District Court of New South Wales
Date: 14 August 2017
Judge: Judge AC Scotting
Background
The defendant company, a small importer and distributor of industrial clothing and equipment, was in the process of relocating its business premises in late 2015. Rather than re-engage the specialist contractor that had previously dismantled and reassembled its pallet racking, the company's managing director decided to have his own workers do the job.
The system of work involved an employee, Matthew Logie, free-climbing the pallet racking frame and standing on horizontal cross beams up to three metres off the ground to position beams above his head. No safety harnesses, scaffolding, or elevated work platform were provided. No risk assessment or safe work method statement was prepared.
On 17 November 2015, Mr Logie fell three metres to the ground. He sustained a fractured skull and traumatic brain injury, required multiple surgeries including drainage of sub-dural haematomas, contracted a subsequent infection, and suffered seizures. He was unable to return to work. His injuries were so severe that his father, not Mr Logie himself, prepared the victim impact statement for sentencing.
Legal Issues
- Whether the defendant's plea of guilty to a breach of its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011, which exposed a worker to a risk of death or serious injury, was appropriately reflected in sentence.
- How to assess the objective seriousness of the offence.
- What mitigating and aggravating factors applied, including the defendant's limited financial capacity to pay.
- What fine was appropriate, having regard to general and specific deterrence, the defendant's guilty plea, and the totality of the financial burden including agreed prosecution costs.
Decision
Judge Scotting assessed the objective seriousness of the offence as falling in the mid-range. The risk of a fall was obvious and foreseeable, the likelihood of that risk materialising was moderate to high, and there were straightforward remedies available, either hiring appropriate equipment with training or re-engaging the specialist contractor as the company had done previously. Instead, no adequate system of work was considered or implemented at all.
His Honour identified several mitigating factors. The company entered an early guilty plea warranting a 25 per cent discount. The managing director gave credible and forthright evidence, acknowledged his mistakes, provided personal and financial support to Mr Logie's family during his hospitalisation, and demonstrated genuine remorse. The company had no prior record and had since ensured no employee works at height. The director's cooperation with investigators and the absence of any profit motive in the conduct were also noted.
The court carefully considered the company's limited capacity to pay. The company had traded at a loss for four years, the directors had sold their family home to inject capital, and both directors now lived in rented accommodation. While capacity to pay is relevant but not decisive (the court cited Jahandideh v R on this point), Judge Scotting was satisfied the limitation was genuine and reduced the fine accordingly.
Starting from a base of $225,000, the court applied the 25 per cent guilty plea discount and then exercised its discretion to further reduce the fine in light of limited capacity to pay. The final fine imposed was $85,000, with 50 per cent directed to the prosecutor under section 122(2) of the Fines Act 1996. The court acknowledged that even this sum risked insolvency but held that the seriousness of the offence and the need for general deterrence, particularly to deter other businesses from exposing workers to unplanned and unsafe work at height, required a substantial penalty.
Orders Made
- The defendant was convicted.
- A fine of $85,000 was imposed, with 50 per cent directed 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 $16,500.
Key Takeaways
- The District Court confirmed that a small business's limited financial capacity is a relevant but not decisive consideration in WHS sentencing: a substantial fine may still be required by the seriousness of the offence and the demands of general deterrence.
- Where a person conducting a business or undertaking (PCBU) directs workers to perform work at height without any fall protection, risk assessment, or safe work method statement, the objective seriousness of the resulting offence will be assessed as significant even where the PCBU is a small operator acting without any profit motive.
- Genuine remorse, post-incident corrective action, personal support provided to the injured worker and their family, and a cooperative approach to investigators each carried weight as mitigating factors in this sentencing.
- Prosecution costs agreed between the parties ($16,500 in this case) were factored into the overall financial burden and taken into account in calibrating the fine itself, consistent with the approach endorsed in Environmental Protection Authority v Barnes.
- The court treated the need to deter other PCBUs from delegating specialist height work to untrained employees, without proper equipment or systems, as a significant sentencing consideration.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(e), 21A(2)(g), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412
- Environmental Protection Agency v Barnes [2006] NSWCA 246
- Jahandideh v R [2014] NSWCCA 178