Citation: SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349
Court: District Court of New South Wales
Date: 11 December 2017
Judge: Judge D. Russell
Background
The defendant company manufactured metal packaging at a factory in Wolli Creek, employing around 120 workers. On 21 April 2015, a line setter completed a changeover on a power press machine, returning it from a piercing configuration back to its usual clenching function. When doing so, he failed to reinstall two independent interlock guarding systems that were designed to prevent the press from cycling unless its safety screen was in the down position.
Shortly after the changeover was completed, a casual labour hire worker was directed to operate the press on the clenching task. She had performed the same task twice before. With the guard in the up position, the press cycled while her right hand was inside it, crushing three fingers.
SafeWork NSW prosecuted the company under the Work Health and Safety Act 2011, alleging it had failed to comply with its primary duty of care as a person conducting a business or undertaking, thereby exposing the worker to a risk of death or serious injury. The company pleaded guilty.
Legal Issues
- What was the appropriate sentence for a corporation that pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011?
- How should the objective seriousness of the offence be assessed, including the nature and foreseeability of the risk and the adequacy of the company's safety systems?
- What weight should be given to mitigating factors, including the guilty plea, remorse, cooperation with authorities, and steps taken since the incident?
- What discount applied for the timing and circumstances of the guilty plea?
- Was an order for prosecution costs appropriate?
Decision
The District Court found the offence fell in the mid-range of objective seriousness. The risk materialised because the line setter, after reconfiguring the press, failed to reinstall either of the two independent interlock guarding systems and completed no documentation confirming he had checked them. Critically, no procedure required him to make any written record of having done so. The company's safety systems did not include a mandatory post-changeover safety check or any requirement to "challenge test" the interlocks before returning the machine to operation.
The court identified several factors that elevated the objective seriousness. The risk of serious injury from an unguarded power press was both obvious and well-known in the industry. The company had experienced previous incidents involving press machines. The injured worker was a casual employee with no background in production work, and she had been given no specific training beyond observing the task twice previously.
In mitigation, the court accepted that the company had demonstrated genuine remorse, cooperated fully with the prosecution, and taken positive remedial steps after the incident. There was no suggestion the company had a limited capacity to pay a fine, so no reduction on that basis was warranted. The court applied a 25% discount for a guilty plea entered at the earliest opportunity.
The court determined the appropriate fine before the plea discount was $240,000. After applying the 25% reduction, the fine was set at $180,000. The court also ordered that 50% of the fine be paid to the prosecutor under the Fines Act 1996, and that the company pay the prosecutor's costs.
Orders Made
- The defendant company was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $180,000 was imposed (reduced from $240,000 by a 25% guilty plea discount).
- 50% of the fine ordered to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
- The defendant ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A company's failure to implement mandatory post-changeover safety checks and challenge-testing procedures for machine interlock systems can constitute a significant gap in its work health and safety duty, contributing to mid-range objective seriousness at sentencing.
- Under s 32 of the Work Health and Safety Act 2011, the maximum fine for a corporation is $1,500,000; the District Court assessed the pre-discount penalty at $240,000, reflecting mid-range objective seriousness after weighing both aggravating and mitigating factors.
- A 25% guilty plea discount applied where the company indicated its intention to plead guilty at the earliest possible opportunity, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999.
- Previous incidents involving the same class of machinery on the same site can be treated as an aggravating circumstance at sentencing, notwithstanding an otherwise positive safety record.
- The vulnerability of the injured worker, specifically her status as a casual employee with no prior production experience and limited task-specific training, was a relevant consideration in assessing the seriousness of the offence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- Occupational Health and Safety Act 1983 (NSW)
Cases
- Veen v R (No. 2) (1998) 164 CLR 465
- 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
- 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
- Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178