Citation: SafeWork NSW v Central Coast Metal Protectives Pty Ltd [2018] NSWDC 167
Court: District Court of New South Wales
Date: 22 June 2018
Judge: Strathdee DCJ
Background
The defendant company operated a metal blasting and painting business on the Central Coast. It was engaged to clean and paint a series of naval pontoons, a confined-space job it had not previously undertaken. The client provided a detailed specification document that required risk assessments and confined-space-trained personnel before any work commenced inside the pontoons.
Two young workers, supplied through a related labour-hire entity, were directed by a production manager to clean the interior surfaces of a pontoon using paint thinners. Neither worker had been trained in confined space entry, no risk assessment had been conducted, no spotter was present, no air monitoring was performed, and no adequate ventilation was in place. The material safety data sheet for the thinners was on site but had not been shared with the workers. The respirator provided to one worker was cracked and taped up; he ultimately sourced a paper face mask as a substitute.
On 24 September 2015, both workers were found wandering outside the pontoon, vomiting and disoriented from fume exposure. They were taken to hospital. Both left the company shortly after returning to work. The defendant pleaded guilty to a category 2 offence under the Work Health and Safety Act 2011, namely failing to comply with its primary health and safety duty in a way that exposed workers to a risk of death or serious injury or illness.
Legal Issues
- What was the appropriate sentence, including the level of objective seriousness of the offence?
- What weight should be given to mitigating factors, including the guilty plea, cooperation, remorse, remediation, and the defendant's prior good record?
- What role should specific and general deterrence play in fixing the penalty?
- What costs order was appropriate?
Decision
Strathdee DCJ assessed the objective seriousness of the offence as mid-range. The risk was obvious and foreseeable: the material safety data sheet expressly warned against use in confined spaces without adequate ventilation, and the client's specification document had specifically required confined space training and risk assessments before work commenced. Multiple, concurrent safety failures compounded the risk, including the absence of any spotter, no air monitoring, no adequate respiratory protection, no ventilation, and a confined space entry permit that was fictitious in substance because it recorded workers as trained when they were not.
On specific deterrence, the court found little need for it. The defendant had discontinued the use of thinners in the cleaning process entirely, implemented proper confined space entry permits, conducted genuine training, and introduced continuous air monitoring and appropriate ventilation systems. The prosecution accepted that these post-incident reforms were genuine and could be taken into account.
General deterrence remained a relevant sentencing consideration. The court acknowledged the community expectation that employers of all sizes will take their obligations under the Act seriously, but confirmed that general deterrence should not dominate the sentencing exercise to the exclusion of all other factors.
The court accepted all mitigating factors put forward by the defendant: a clean record over 44 years of operation, a guilty plea entered at the earliest opportunity (attracting the full 25% utilitarian discount), demonstrated remorse, cooperation with the SafeWork NSW investigation, and post-incident remediation. A victim impact statement from one of the injured workers, noting ongoing effects, was also received and considered. The pre-discount fine was assessed at $60,000, reduced to $45,000 after the plea discount.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $45,000 was imposed (reduced from $60,000 by 25% for the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW).
- The defendant was ordered to pay the prosecutor's agreed costs of $26,500.
Key Takeaways
- The District Court assessed the offence as mid-range in objective seriousness where multiple, concurrent and foreseeable safety failures coincided: no risk assessment, no confined space training, no spotter, no air monitoring, no adequate ventilation, and ineffective respiratory protection.
- A category 2 WHS offence carries a maximum fine of $1,500,000 for a body corporate; the final penalty of $45,000 reflected the significant weight given to mitigating factors in a case with no prior record and genuine post-incident remediation.
- Genuine and documented remediation after an incident is a recognised mitigating factor in WHS sentencing, and the prosecution's concession that reforms were genuine was treated as properly available to the defendant.
- Where a defendant enters a guilty plea at the earliest opportunity, the full 25% utilitarian discount applies to reflect the practical benefits to the justice system and the acceptance of responsibility.
- General deterrence is a mandatory consideration in WHS sentencing, but the court confirmed it does not operate to override all other sentencing factors, consistent with the approach taken in cases such as Nash v Silver City Drilling and Capral Aluminium.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19 and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v McNaughton (2006) 66 NSWLR 566
- Veen v R (No. 2) (1988) 164 CLR 465
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432