Citation: SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191
Court: District Court of New South Wales
Date: 16 July 2018
Judge: Scotting DCJ
Background
The defendant, Turfco Australia Pty Ltd, is a small family-owned business that grows, harvests, and sells turf. It operated a turf harvester consisting of a tractor with a cutting and conveyor mechanism. A worker called the "turf stacker" stood on an open side platform at the rear of the harvester to manually stack cut turf slabs onto pallets.
The company used two operational practices that departed from the manufacturer's operator's manual. First, the "hop-off system" allowed the driver to alight from the moving tractor to assist the stacker, which the manual expressly prohibited. Second, the "reversing system" involved driving the harvester in reverse over distances of up to 150 metres to transport cut turf to an unloading point, with the stacker riding on the open platform, which had no barrier at its rear edge.
On 1 December 2014, employee Blaine Rozs was working as the turf stacker. During a reverse run across damp ground, he fell from the platform and became trapped beneath the tractor component, which weighed almost four tonnes. He died at the scene from traumatic asphyxia. SafeWork NSW prosecuted the company for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011, thereby exposing Mr Rozs to a risk of death or serious injury.
Legal Issues
- Whether the company failed to discharge its primary duty as a person conducting a business or undertaking under section 19(1) of the Work Health and Safety Act 2011, contrary to section 32 of that Act
- The appropriate penalty, including an assessment of the objective seriousness of the offence
- What weight to give to mitigating factors: guilty plea, remorse, co-operation, post-incident remediation, and good prospects of rehabilitation
- Whether the victim impact statement could be taken into account in fixing punishment
- Whether a costs order in favour of the prosecutor was appropriate
Decision
The company pleaded guilty. Scotting DCJ assessed the objective seriousness of the offence as falling in the mid-range. The risks created by the hop-off system and the reversing system were significant, and both practices contravened the operator's manual that the company held and used for maintenance purposes. Neither Mr Rozs nor the driver had ever been informed of the manual's safety directions, and the logistics manager had not read it at all.
The court identified several aggravating features: the company had the means to operate safely by using a separate vehicle to transport cut turf (as the manual described), spare forklifts were available on the day but unused for that purpose, the unsafe practices were systemic rather than isolated, and the harm that resulted was the most serious possible outcome. However, the court noted some countervailing considerations. The risk of falling from the platform, while foreseeable, had not previously materialised despite the practices being used for some time, and the company had no prior convictions.
On mitigating factors, the court accepted that the company demonstrated genuine remorse through its director's affidavit and through financial support provided to Mr Rozs' family. It had co-operated fully with both the police and SafeWork NSW investigations, and had undertaken substantial post-incident improvements including fitting the harvester with mirrors, a reverse beeper, and additional signage, prohibiting the stacker from riding the platform during reversal, and ultimately replacing the harvester with a one-person automatic model. The court found good prospects of rehabilitation.
The court set the appropriate fine at $500,000 before discount and applied a 25% reduction for the guilty plea, arriving at a fine of $375,000. Fifty per cent of that fine was directed to the prosecutor under section 122(2) of the Fines Act 1996, as is the statutory default for WHS prosecutions. The victim impact statement, read aloud by Mr Rozs' mother, was taken into account on the basis that harm to the deceased's family constitutes harm to the community under section 28(4) of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- Conviction recorded against the defendant
- Fine of $375,000 imposed (reduced by 25% from a base of $500,000)
- 50% of the fine directed to the prosecutor pursuant to section 122(2) of the Fines Act 1996
- Defendant ordered to pay the prosecutor's costs as assessed or agreed
Key Takeaways
- A guilty plea entered at an appropriate stage attracted a 25% discount on penalty, with the District Court confirming that the timing of the plea is the primary consideration in determining the size of that discount.
- Possession of an operator's manual that contained relevant safety directions was treated as a relevant fact in establishing the accessible and practicable measures the company failed to implement.
- Systemic unsafe work practices, as opposed to a one-off deviation, elevated the objective seriousness of the offence, even where no prior incident had occurred using the same methods.
- Post-incident remediation, including equipment upgrades, revised operating procedures, and genuine cooperation with regulators, carried real mitigating weight in the sentencing exercise.
- Under section 28(4) of the Crimes (Sentencing Procedure) Act 1999, harm caused to a deceased worker's family by a WHS offence can properly be considered as harm to the community when fixing punishment.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 28(4)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412