Citation: Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 130
Court: District Court of New South Wales
Date: 13 April 2018
Judge: Kearns DCJ
Background
Perilya Broken Hill Limited (PBHL) is a mining company operating at Broken Hill. On 28 February 2018, Kearns DCJ found PBHL guilty of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (WHS Act) following an incident in which a worker, Mr Pollard, used the bucket of a front-end loader as a work platform, fell, and suffered serious injury.
The sentencing judgment followed earlier findings that PBHL had failed to ensure the health and safety of workers, primarily through a deficient job safety analysis (JSA) process and a failure to maintain and properly inspect personal protective equipment (PPE). The maximum penalty for a Category 2 offence is $1,500,000.
The sentencing hearing required the court to assess the objective seriousness of the offence, identify aggravating and mitigating factors, and determine an appropriate fine.
Legal Issues
- What was the objective seriousness of PBHL's offence, having regard to the foreseeability of risk, the foreseeability of consequences, and the measures available to avoid the risk?
- What aggravating factors applied in the circumstances?
- What mitigating factors, including post-incident remediation, prior safety record, and support provided to the injured worker, were available to PBHL?
- What financial penalty was proportionate to the gravity of the offence without exceeding what the offence warranted?
Decision
Objective seriousness
Kearns DCJ assessed the offence as objectively serious. The risk of injury from a worker entering the loader bucket was not merely foreseeable in the abstract; PBHL had actually foreseen it, and recognised it posed a risk of death or serious injury. Despite this, the company failed to address that risk adequately through its JSA process or its PPE inspection regime.
The JSA deficiencies were extensive. The document was prepared without the full work team, away from the job site, and omitted most of the steps PBHL itself said it had planned. Critically, it failed to identify the risk of falling from height and did not include a control measure prohibiting work from the loader bucket. The supervisor signed off on the plainly deficient JSA and sent the workers to begin the task without correction.
The PPE failures were also found to be of a high level of seriousness. Mr Pollard's harness was among the worst the expert had seen. PBHL's external inspection system was structurally flawed, allowing large quantities of PPE to go uninspected for extended periods. A post-incident inspection failed approximately 60 harnesses and lanyards, some of which were out of date by five years.
Aggravating and mitigating factors
The court accepted several of PBHL's submissions as having some merit in reducing objective seriousness: an unwritten policy prohibited use of the loader bucket as a work platform, the workers knew of that policy, and experienced personnel had been chosen for the task. However, the submission that workers had a right and duty to amend the JSA themselves was given little weight, given that the supervisor had signed off on the document without alerting workers to the prohibition on entering the bucket.
PBHL had no prior convictions, had taken genuine post-incident remedial action (including formalising its ban on loader bucket use and overhauling its PPE inspection regime), provided financial and practical support to Mr Pollard, and made significant community contributions. These matters were accepted in mitigation. However, the absence of any explanation in evidence for why PBHL's existing systems had not been followed meant that no additional mitigation could be derived from those circumstances.
Penalty
Taking into account the objective seriousness of the offence, the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (including deterrence), and the mitigating factors, Kearns DCJ assessed a fine of $500,000 as appropriate.
Orders Made
- PBHL was convicted of the Category 2 offence under s 32 of the Work Health and Safety Act 2011.
- PBHL was fined $500,000.
- One half of the fine ($250,000) was ordered to be paid to the prosecutor in accordance with s 122 of the Fines Act 1996.
Key Takeaways
- The District Court confirmed that where a defendant had actually foreseen a risk of death or serious injury, that foresight is a significant factor in assessing the objective seriousness of a WHS offence, rather than merely a finding that the risk was foreseeable.
- A JSA that is prepared without the full work team, away from the job site, and that omits most of the contemplated work steps will be found seriously deficient; the supervisor's acceptance of such a document compounds rather than cures the failure.
- Structural failures in a PPE inspection system, particularly where a simple audit would have revealed that not all equipment was being examined, are treated as a distinct and weighty element of objective seriousness in sentencing.
- Post-incident remediation, support provided to the injured worker, prior good record, and community contributions can each operate in mitigation, but their weight is reduced where the defendant provides no explanation for why its existing safety systems were not followed.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999 and general sentencing principle derived from Veen v The Queen [No. 2], a sentence must reflect the gravity of the offence but must not exceed what is proportionate to it, a principle the court applied in arriving at a $500,000 fine against the $1,500,000 maximum.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32 (Category 2 offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Veen v The Queen [No. 2] (1987-88) 164 CLR 465