Citation: SafeWork NSW v Harris Holdings NSW Pty Ltd; SafeWork NSW v Harry Zizikas [2017] NSWDC 299
Court: District Court of New South Wales
Date: 2 November 2017
Judge: Judge D. Russell
Background
A waste processing company and its sole director were each prosecuted following the death of a labourer at the company's sorting yard in Lidcombe, New South Wales. The company, Harris Holdings NSW Pty Ltd, processed domestic and commercial waste. The deceased worker, a Sri Lankan national with very limited English, had been employed as a sorter for just over a year at the time of his death.
On 26 November 2015, an excavator operated by the site's leading hand moved backwards without warning while workers were sorting nearby. The deceased worker's foot became caught in the excavator's tracks. The track pinned and then dragged him, causing severe injuries to his pelvis. Despite the efforts of co-workers and emergency services, he went into cardiac arrest and was pronounced dead at 12:50 pm.
The excavator operator had not sounded any warning before moving the machine, believing all workers were in front of him. He was unaware of the incident until a co-worker ran around the machine to alert him. SafeWork NSW prosecuted both the company and its director for failing to comply with their respective work health and safety duties, exposing the worker to a risk of death or serious injury.
Legal Issues
- Whether Harris Holdings failed to comply with its primary duty of care under s 19 of the Work Health and Safety Act 2011 (WHS Act), contrary to s 32
- Whether the sole director, Mr Harry Zizikas, failed to exercise due diligence to ensure the company's compliance with that duty, contrary to ss 27 and 32 of the WHS Act
- What penalty was appropriate for each offender, having regard to objective seriousness, mitigating and aggravating factors, the pleas of guilty, and the financial circumstances of each defendant
- Whether the financial information provided by the defendants justified any reduction in an otherwise appropriate fine
Decision
Both defendants entered pleas of guilty. The court assessed the objective seriousness of the offences as falling in the middle of the range. The risks associated with operating heavy machinery in close proximity to workers on foot were well known, the hazard was foreseeable, and the measures needed to address it were readily available. The victim was a vulnerable worker: he spoke little English, had received no adequate safety training, and worked in an environment where communication of risks was plainly inadequate.
The court identified several aggravating features. The company had failed to establish any safe system of work to manage the interaction between the excavator and workers on foot. There were no exclusion zones, no warning protocols, and no adequate training, particularly given the language barriers present among the workforce. The sole director bore direct responsibility for training and systems at the site.
On mitigation, the court accepted that both defendants had no prior convictions, had co-operated with investigators, and had entered early pleas of guilty. The court also accepted expressions of remorse, though it noted that remorse must be assessed carefully where it follows prosecution. A 25 percent discount was applied to each fine to reflect the pleas of guilty.
The court rejected submissions that the defendants' financial circumstances warranted a further reduction in the fines. It found the financial information presented was incomplete and, in some respects, self-serving. The court noted that management fees were being shifted between related entities controlled by Mr Zizikas, that neither company appeared insolvent, and that the group's tax debts had not caused any entity to close. The court declined to treat the financial material as demonstrating any incapacity to pay an appropriate fine.
Orders Made
Harris Holdings NSW Pty Ltd:
- Convicted of the offence under ss 19 and 32 of the WHS Act
- Fined $300,000 (reduced from a base of $400,000 by 25% for the guilty plea)
- 50% of the fine ordered to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Ordered to pay the prosecutor's costs as agreed or assessed
Mr Harry Zizikas:
- Convicted of the offence under ss 27 and 32 of the WHS Act
- Fined $60,000 (reduced from a base of $80,000 by 25% for the guilty plea)
- 50% of the fine ordered to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Ordered to pay the prosecutor's costs as agreed or assessed
Key Takeaways
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The District Court assessed the objective seriousness of WHS offences involving a workplace fatality by reference to the foreseeability of the risk, the availability of simple control measures, and the vulnerability of the workers exposed to the risk.
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A sole director's personal liability under s 27 of the WHS Act turns on whether that person exercised due diligence to ensure the company complied with its primary duty; here, responsibility for training and systems rested directly with the director.
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Language barriers and limited English proficiency among a workforce are factors the court treated as heightening a company's obligation to ensure adequate safety systems and training are in place.
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Financial evidence presented to mitigate penalty must be complete and reliable; the court refused to reduce the fines where corporate accounts were unsigned and unsigned, management fees were being shuffled among related entities, and no insolvency was established.
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Under s 122(2) of the Fines Act 1996, the court has power to direct that a portion of a fine be paid to the prosecuting authority, and in this case ordered that 50% of each fine be so directed.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Veen v R (No. 2) (1998) 164 CLR
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1998) 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; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338