Citation: SafeWork NSW v City Projects Pty Limited [2017] NSWDC 364
Court: District Court of New South Wales
Date: 15 December 2017
Judge: Judge D. Russell
Background
City Projects Pty Limited, an office fit-out contractor, pleaded guilty to a breach of its primary health and safety duty under the Work Health and Safety Act 2011. The offence involved exposing a truck driver, employed by a subcontractor, to a risk of death or serious injury during an unloading operation at the company's Roseville warehouse.
On 17 March 2016, a delivery of ten glass crates (totalling 8,500 kg) arrived at the warehouse. The offender's staff decided to use a two-tonne forklift borrowed from a neighbouring business to unload the crates. Critically, the employee instructed to operate the forklift held no forklift licence, and neither did the supervisor who directed him. No risk assessment was conducted for the operation.
During the unloading, a large, unstable glass crate fell from the forklift and crushed the truck driver's left leg. The driver sustained serious injuries requiring surgery, hospitalisation, and an extended recovery period. SafeWork NSW subsequently issued a prohibition notice preventing further unloading of the remaining crates.
Legal Issues
- What fine was appropriate for a Category 2 offence under s 32 of the Work Health and Safety Act 2011, where the maximum penalty is $1,500,000?
- What was the objective seriousness of the offence?
- What mitigating and aggravating factors applied, and how did they affect the penalty?
- What discount applied for the early guilty plea?
- Whether the offender's capacity to pay was relevant to the fine imposed.
Decision
The court assessed the objective seriousness of the offence as significant, though not at the highest end. The risk of death or serious injury was obvious: an unlicensed operator was directed to move heavy, unstable glass crates on a borrowed forklift, with no risk assessment and no safe system of work for the operation. The weight of the crates was not known to the offender, no manifest details had been obtained, and the operator's vision was obscured once the crate was loaded.
Several aggravating features were identified. The offender's supervisor (the Contracts Administration and Safety Coordinator) was directly involved in the decision-making and was himself unlicensed. The incident occurred in the presence of, and in part due to the actions of, the victim and the supervisor, both of whom walked alongside the moving load in an attempt to stabilise it.
In mitigation, the court accepted that the offender had no prior convictions, had cooperated fully with SafeWork NSW, expressed genuine remorse, and had implemented new safety procedures following the incident. The court also accepted good prospects of rehabilitation. An early indication of a guilty plea attracted a 25% discount. No evidence was led by the offender of a limited capacity to pay.
Applying a 25% discount to a starting point of $200,000, the court imposed a fine of $150,000. Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was directed to the prosecutor. The parties had agreed on prosecution costs of $17,527.
Orders Made
- The offender was convicted.
- A fine of $150,000 was imposed (reduced by 25% from a starting point of $200,000 to reflect the early guilty plea).
- 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 agreed costs of $17,527.
Key Takeaways
- The District Court confirmed that directing an unlicensed employee to operate a forklift, without any risk assessment or safe system of work, in circumstances where heavy and unstable loads were involved, constituted a serious breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011.
- A 25% discount on the fine was granted where the offender indicated an intention to plead guilty at the earliest possible opportunity, consistent with established sentencing principles.
- Cooperation with investigators, genuine remorse, no prior convictions, and post-incident remediation were all recognised as mitigating factors, but the objective seriousness of the offence remained a significant counterweight.
- Under the Fines Act 1996, the court is required to consider an offender's capacity to pay before imposing a fine; however, where no evidence of limited capacity is led, this question does not arise and does not constrain the fine.
- The involvement of a supervisor (rather than a mere co-worker) in directing the unsafe operation elevated the objective gravity of the offence, as it reflected a failure of the offender's safety governance at a managerial level.
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(1)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Jahandideh v R [2014] NSWCCA 178
- 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