Citation: SafeWork NSW v Cosentino Australia Pty Ltd (No. 2) [2018] NSWDC 182
Court: District Court of New South Wales
Date: 6 July 2018
Judge: Russell SC DCJ
Background
The defendant, a large stone products importer operating warehouses across Australia and New Zealand, was found guilty on 9 March 2018 of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (the Act). The finding of guilt is recorded in the earlier decision, SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47. This judgment deals with sentence only.
The offence arose from the loading of nine heavy stone slabs onto one side only of an A-frame on a truck driven by a contractor. The loading was performed by the defendant's employees using the defendant's overhead crane on the defendant's premises. The resulting imbalance caused the slabs to fall onto the truck driver, inflicting catastrophic and permanent injuries.
The defendant had existing safety documentation, including Cardinal Rules and a loading procedure, that expressly identified the risk of serious injury from non-compliant loading. Despite this, the unsafe loading occurred, and the defendant did not change its loading or storage procedures after the incident.
Legal Issues
- What level of objective seriousness attached to the offending, having regard to foreseeability of the risk, the severity of potential harm, and the ease of compliance?
- What weight should be given to aggravating and mitigating factors, including the defendant's safety record, post-incident remediation, and the victim's injuries?
- What fine was appropriate within the statutory maximum of $1,500,000, and how should it be apportioned?
Decision
Russell SC DCJ assessed the objective seriousness of the offence by reference to the framework set out by Basten JA in Nash v Silver City Drilling [2017] NSWCCA 96. The court considered the foreseeability of the risk, the catastrophic potential consequences, the likelihood of harm, the defendant's control over the loading process, and the minimal cost and inconvenience of compliance. Each of those factors pointed toward high culpability.
Critically, the court found that the risk was not merely foreseeable in the abstract but had actually been foreseen and documented. The defendant's own Cardinal Rules and loading procedures identified the very danger that materialised, and compliance would have cost nothing and taken only a few minutes. Employees also knew at the time that unloading one side of the A-frame would create a dangerous imbalance.
On mitigating factors, the court acknowledged the defendant's post-incident engagement of Safety Service Australia, the introduction of new national safety policies, the appointment of dedicated safety staff, and cooperation with the regulator. The court also accepted that there was no evidence of a limited capacity to pay, so that consideration did not arise.
The victim impact statement of the injured truck driver, describing brain damage, loss of vision, severe mobility impairment, incontinence, inability to work, and separation from his family in Pakistan, was received into evidence and taken into account before sentence was imposed. The court imposed a fine of $200,000, with 50% directed to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
Orders Made
- The defendant is convicted of the Category 2 offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $200,000 is imposed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under the Nash v Silver City Drilling framework, culpability in WHS sentencing is assessed by weighing the foreseeability of the risk, the severity of potential harm, and the burden of the steps needed to eliminate or reduce that risk. No single factor is determinative.
- Where a defendant's own written safety rules identify a risk that later materialises, that foresight significantly elevates the objective seriousness of the offence, regardless of whether the breach was deliberate.
- Post-incident remediation, including the introduction of new policies, safety audits, and specialist staff, may be treated as a mitigating factor at sentence, even where the defendant did not alter the specific procedure involved in the incident.
- Victim impact statements are admissible and will be taken into account in WHS prosecutions, and the District Court here received a statement describing severe and permanent disability.
- The maximum penalty for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 is $1,500,000 for a corporation; the fine imposed in this case ($200,000) reflected both the substantial objective seriousness of the offence and the mitigating circumstances established in evidence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Fines Act 1996 (NSW), s 122(2)
Cases
- SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47 (the guilt finding)
- 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
- Veen v R (No. 2) (1998) 164 CLR 465
- Baumer v R (1998) 166 CLR 51
- R v McNaughton (2006) 66 NSWLR 566
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- BW v R [2011] NSWCCA 176
- Jahandideh v R [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432