Citation: SafeWork NSW v Grant [2017] NSWDC 99
Court: District Court of New South Wales
Date: 9 May 2017
Judge(s): Kearns DCJ
Background
The defendant was the sole proprietor of a tree services business operating on the Northern Beaches of Sydney. In February 2014, his business was engaged to remove a dead, 20-metre standing trunk at a property in Terrey Hills. The tree had been dead for at least five to seven years, was affected by fungal and insect infestation, and had a severely deteriorated root system with no structural roots remaining.
Prior to the job, a tenant at the property had shown the defendant the decaying root system, and the defendant himself observed the tree's top move approximately one metre when he pushed the base. The use of a crane was raised and offered by the property owner, but the defendant declined, stating the tree could be safely climbed.
On the day of the incident, one of the defendant's workers, Mr Hall, was directed to climb the tree and fell it in sections using a chainsaw. When the tree was cut, it fell toward the work crew with Mr Hall still attached. Mr Hall struck the ground with the tree and suffered serious injuries, including severe brain injury. Other workers were also at risk during the fall.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, failed to comply with his primary duty of care under section 19(1) of the Work Health and Safety Act 2011, constituting a Category 2 offence under section 32.
- What sentence was appropriate having regard to the gravity of the offence, aggravating and mitigating factors, and the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999.
- What weight should be given to the defendant's guilty plea, cooperation, lack of prior convictions, financial hardship, and claimed remorse.
Decision
The defendant pleaded guilty to the charge. Kearns DCJ began his sentencing analysis by examining the gravity of the offence, focusing on the foreseeability of the risk, the foreseeability of the consequences if the risk materialised, and the measures available to avoid it. His Honour found the risk of serious injury or death was not merely foreseeable in an abstract sense; it was actually foreseen. The defendant had already seen the tree's instability, was alerted to the root deterioration, observed the tree wobble during the climb, and had been offered a crane. Despite all of this, he directed a worker to climb and sectionally fell the tree.
His Honour identified several aggravating factors. The risk was obvious and foreseen. The tree was plainly unsafe to climb under the Amenity Tree Industry Code of Practice 1998. Multiple workers were exposed to the risk, not only the climber. The defendant had failed to adopt readily available and cost-effective control measures, particularly the use of a crane which the property owner had already agreed to fund.
On mitigating factors, the defendant's guilty plea attracted a discount, and his cooperation with investigators was acknowledged. His Honour accepted no prior convictions and noted the defendant had been operating since 2010. However, his Honour declined to find genuine remorse. The defendant's affidavit addressed his financial position only, and the claim that he had stopped felling dead trees was not accepted as a meaningful expression of remorse in the absence of any other corroborating conduct. Evidence of financial hardship was also given limited weight, given the availability of relief mechanisms under the Fines Act 1996.
The maximum penalty for a Category 2 offence by an individual was $300,000. Taking all factors into account, including the guilty plea discount, Kearns DCJ determined that a fine of $80,000 was appropriate.
Orders Made
- The defendant was convicted and fined $80,000, with a moiety (half the fine) payable to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A risk does not need to be merely foreseeable in the abstract to satisfy the gravity analysis in a WHS sentencing; where a defendant actually foresaw the risk and proceeded regardless, that weighs significantly toward a more serious assessment of the offence.
- Under the Work Health and Safety Act 2011, the duty under section 19(1) extends to all workers on a site, not only the worker most directly exposed to the hazard.
- Claimed remorse carries limited weight in sentencing where it is expressed only in an affidavit and is unsupported by any concrete post-incident actions demonstrating a genuine change in conduct.
- Evidence of financial hardship alone, without engaging the relief mechanisms available under the Fines Act 1996, is of limited utility in mitigation of a financial penalty.
- The District Court confirmed that the availability of a straightforward and cost-effective control measure, here a crane already offered and funded by the client, is a material factor in assessing the gravity of a WHS offence where that measure was not adopted.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW)
- Amenity Tree Industry Code of Practice 1998
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37