Citation: SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253
Court: District Court of New South Wales
Date: 14 September 2018
Judge: Strathdee DCJ
Background
The offender was a small labour-hire company contracted to provide stock-picking workers at a warehouse in Padstow, NSW. On 19 July 2016, a worker who had commenced employment only the day before was struck by a reversing forklift as it exited an aisle, sustaining fractures to the toes on both feet. She required surgery and three days of hospitalisation.
At the time of the incident, systems for managing pedestrian and forklift interactions were informal and undocumented. Workers were given verbal instructions to evacuate aisles during forklift operations, but pedestrian walkways were poorly marked and induction materials were in English only, with Vietnamese translation relying solely on a supervisor's oral explanation.
The offender, a body corporate, pleaded guilty on 16 July 2018 to a Category 2 offence under section 32 of the Work Health and Safety Act 2011, namely failing to ensure, so far as was reasonably practicable, the health and safety of its workers at work, thereby exposing the injured worker to a risk of death or serious injury.
Legal Issues
- Where on the scale of objective seriousness did the offender's conduct fall, given the nature of the risk, its foreseeability, and the availability of control measures?
- What weight should be given to mitigating factors, including the early guilty plea, absence of prior offences, and post-incident remediation?
- How should the offender's limited financial capacity affect the quantum of the fine, including the risk of insolvency?
- What penalty was proportionate, and how should prosecution costs be treated in the overall assessment?
Decision
Strathdee DCJ assessed the objective seriousness of the offence by reference to the foreseeability of the risk, the gravity of potential harm, and the practicability of available controls. The risk of a pedestrian worker being struck by a forklift in a shared warehouse aisle was plainly foreseeable. The offender's pre-existing systems, while not entirely absent, were informal, undocumented, and inadequate, particularly given that new workers included non-English speakers who relied on a single supervisor for safety instructions.
The court accepted several mitigating factors: an early guilty plea (attracting a 25% discount), no prior health and safety convictions, genuine remorse, and substantial post-incident improvements including a WHS consultant engagement, new induction materials with line-by-line Vietnamese translation, updated forklift safety training, and the director obtaining a high-risk work licence. These factors reduced what would otherwise have been a higher penalty.
On financial capacity, the court noted that the offender's limited means did not eliminate the need for a meaningful fine. Applying the principle from WorkCover Authority (NSW) v Lyndhurst Trading Co, the court first assessed the appropriate fine on the merits and then reduced it to reflect the offender's financial circumstances. The court also accepted, following Environment Protection Authority v Barnes, that the agreed prosecution costs of $18,000 could be taken into account when determining the penalty.
The court imposed a fine of $30,000 (being $40,000 reduced by 25% for the guilty plea), with 50% payable to the prosecutor under the Fines Act 1996, and ordered the offender to pay agreed prosecution costs of $18,000.
Orders Made
- The offender was convicted.
- A fine of $30,000 was imposed (assessed at $40,000, reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's costs in the agreed sum of $18,000.
Key Takeaways
- Under the Work Health and Safety Act 2011, a body corporate faces a maximum penalty of $1,500,000 for a Category 2 offence; the sentencing court calibrates the actual penalty by locating the offending along the full range of possible conduct.
- Verbal-only safety systems that are not documented, and induction materials that are not accessible to workers in their own language, are likely to weigh against an offender on the question of objective seriousness.
- An early guilty plea attracted a 25% discount, consistent with established sentencing principles, and genuine post-incident remediation was accepted as a mitigating factor.
- Where a defendant raises financial incapacity, the correct approach is to assess the appropriate fine first on the gravity of the offending, then reduce it to reflect limited means, rather than treating impecuniosity as a reason to avoid a substantial penalty altogether.
- Agreed prosecution costs formed part of the court's overall consideration of the financial burden placed on the offender, following the approach confirmed in Environment Protection Authority v Barnes.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Fines Act 1996 (NSW), s 122(2)
Cases
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; 93 NSWLR 338
- Muldrock v The Queen [2011] HCA 39
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Environment Protection Authority v Barnes [2006] NSWCCA 246
- BW v R [2011] NSWCCA 176
- Baumer v R (1998) 166 CLR 51
- R v Wilkinson (No 5) [2009] NSWSC 432
- WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462
- McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; 137 IR 310
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Jahandideh v R [2014] NSWCCA 178