Citation: SafeWork NSW v Hydro Clean (Griffith) Pty Ltd [2017] NSWDC 264
Court: District Court of New South Wales
Date: 22 September 2017
Judge: Judge D. Russell
Background
Hydro Clean (Griffith) Pty Ltd, a small engineering and fabrication business operating near Griffith, NSW, was engaged as head contractor to demolish an ice plant at a poultry processing facility. The work required the use of a mobile crane to remove steel columns from a platform approximately six metres above the ground. The company had 14 employees and contracted MIA Cranes to supply the crane and operator.
On 21 January 2015, a 24-year-old third-year apprentice welder, Mr Domenic Zirilli, was directed by his supervisor to attach a chain to a steel column in preparation for it to be crane-lifted. Neither Mr Zirilli nor his supervisor held rigging or dogging qualifications, and Mr Zirilli had received no formal rigging training. Critically, the company's manager had previously declined to have a qualified rigger on site that day, believing the job was small and straightforward.
When the crane lifted the column, the chain slid upward toward the top of the column. The column then fell, striking Mr Zirilli and causing serious injuries including multiple fractures. The company pleaded guilty to failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011, thereby exposing Mr Zirilli to a risk of death or serious injury.
Legal Issues
- The objective seriousness of the offence and where it sat within the range of comparable penalties under the Work Health and Safety Act 2011
- What mitigating and aggravating factors applied to the sentencing exercise
- The appropriate discount for the guilty plea, and the timing of that plea
- The offender's capacity to pay a fine
- The appropriate total penalty, having regard to general and specific deterrence
Decision
Judge Russell assessed the offence as falling in the low to mid range of objective seriousness. The risk of injury from unsecured crane loads was foreseeable and well-known, and the failure was significant: an unqualified apprentice was directed to perform rigging work without proper training or supervision, and the company's manager had actively declined to have a qualified rigger present. The supervisor also left the platform during the critical lift, removing himself from any position to observe or intervene.
In assessing seriousness, the court noted several compounding failures. The chain attachment method used was inadequate. No safe work method statement was in place for this particular lift. The column fell from a height of approximately 6.1 metres, and the injuries to Mr Zirilli, while serious, did not result in permanent disability or death, which distinguished the case from the most serious examples.
A number of mitigating factors weighed in the offender's favour. The company had no prior convictions, co-operated fully with SafeWork NSW, demonstrated genuine remorse through evidence from the manager and director, and had taken remedial steps to prevent recurrence. The guilty plea was entered at the earliest practical opportunity once an amended summons and agreed statement of facts were prepared, warranting a 25% discount. The company's initial submission that it had limited capacity to pay was ultimately withdrawn.
Applying the discount, the court imposed a fine of $120,000, reduced from a pre-discount figure of $160,000. The court ordered that 50% of the fine be paid to the prosecutor, as permitted under the Fines Act 1996, and that the offender pay the prosecutor's agreed costs of $32,500.
Orders Made
- The offender was convicted of the offence under s 32 of the Work Health and Safety Act 2011
- A fine of $120,000 was imposed (reflecting a 25% guilty plea discount from $160,000)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor
- The offender was ordered to pay the prosecutor's costs in the agreed sum of $32,500
Key Takeaways
- The District Court treated the absence of a qualified rigger on site, the use of an untrained apprentice for rigging work, and the supervisor's departure during a critical crane lift as collectively placing this offence in the low to mid range of objective seriousness under the WHS Act.
- A guilty plea entered at the earliest practical opportunity, once formal charging documents and an agreed statement of facts were produced, attracted the maximum discount of 25%.
- Where an offender withdraws a submission about limited capacity to pay, that factor does not arise in sentencing, and the court proceeds on the basis that the fine as assessed is appropriate.
- General deterrence remains a significant consideration in WHS prosecutions even where the offender is a small business with no prior record and has taken genuine remedial steps following the incident.
- Under s 122(2) of the Fines Act 1996, a sentencing court may direct that a portion of a WHS fine be paid to the prosecuting authority, and the court here ordered 50% accordingly.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Veen v R (No. 2) (1988) 164 CLR 465
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338