Citation: SafeWork NSW v Hiltour Pty Ltd [2018] NSWDC 376
Court: District Court of New South Wales
Date: 3 December 2018
Judge: Scotting DCJ
Background
Hiltour Pty Ltd is a West Gosford company with approximately 30 years of operation producing epoxy resin-based protective coatings, composites and adhesives. Its sole director, an industrial chemist with 40 years of experience, was present at the premises on the day of the relevant incident.
On 19 January 2016, a leading hand with over nine years of service was decanting a chemical compound known as DER 731 from a large storage container. Approximately two to three litres of the liquid spilled onto his left leg. He cleaned the area with soapy rags but did not use the emergency safety shower located nearby, and did not remove his boots despite the Material Safety Data Sheet (MSDS) for DER 731 directing that contaminated leather items be destroyed. Over the following days, his condition deteriorated significantly. He ultimately suffered first and second degree burns from his knee to his foot, required admission to hospital, and underwent skin graft surgery.
The company had been aware of the incident from the day it occurred, yet failed to notify SafeWork NSW. SafeWork only learned of the incident on 4 February 2016, when the injured worker himself made contact to ask whether it had been reported.
Legal Issues
- Whether Hiltour, as a person conducting a business with a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (WHS Act), failed to comply with that duty and thereby exposed a worker to a risk of death or serious injury, contrary to section 32 of the WHS Act.
- Whether Hiltour failed to notify SafeWork NSW of a notifiable incident, contrary to section 38 of the WHS Act.
- The appropriate penalties for both offences, including the application of mitigating and aggravating factors under the Crimes (Sentencing Procedure) Act 1999.
Decision
Hiltour pleaded guilty to both offences. The court proceeded to sentence, assessing the objective seriousness of each offence and weighing the relevant aggravating and mitigating factors.
On the primary safety offence under section 32, Scotting DCJ found the objective seriousness to be in the low-to-mid range. The risk was foreseeable and the available control measures, including providing workers with MSDS documents and training them in first aid responses to chemical contact, were straightforward and cost-free. The company had the MSDS for DER 731 on site but had never directed the injured worker to read it. There was no documented safe work procedure for batching, and no training had been given on managing chemical spills or skin exposure. The court treated the substantial harm suffered by the worker as an aggravating factor, noting that while the offence required only the creation of a risk rather than actual injury, the severity of the burns and the need for surgery demonstrated consequences more serious than might ordinarily be expected.
On mitigating factors, the court accepted that Hiltour had no prior convictions and had operated for over three decades without incident. It also accepted genuine remorse, evidenced by affidavits from the director and the company's efforts to support the worker's rehabilitation. Post-incident, the company revised its procedures to require workers to wear additional protective equipment and to sign acknowledgment of MSDS requirements for each batch they produce. The court applied a 25% guilty plea discount, consistent with the utilitarian value of early pleas recognised in R v Thomson & Houlton and R v Borkowski, and credited the company's cooperation with the SafeWork investigation.
The court imposed a fine of $45,000 for the section 32 offence (reduced from $60,000 after the plea discount) and $3,750 for the notification offence (reduced from $5,000). Pursuant to section 122(2) of the Fines Act 1996, 50% of the fines were directed to the prosecutor.
Orders Made
- Fine of $45,000 imposed for the section 32 WHS Act offence.
- Fine of $3,750 imposed for the section 38 WHS Act offence.
- 50% of each fine to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- The offender to pay the prosecutor's costs in the agreed sum of $38,000.
Key Takeaways
- A company's possession of an MSDS for a hazardous chemical is insufficient to discharge a health and safety duty if workers are never trained in its contents or directed to read it.
- Under section 32 of the WHS Act, the offence is complete upon the creation of a risk of death or serious injury; actual injury is not a necessary element. Where serious injury does result, however, the court confirmed it constitutes an aggravating factor demonstrating harm substantially greater than ordinarily expected for the offence.
- The District Court assessed objective seriousness as low-to-mid where risk control measures were readily available at no cost and required no specialised resources to implement.
- A 25% discount applied to the fines for a guilty plea, reflecting both the utilitarian value of the plea and its indication of remorse, consistent with established sentencing principles.
- Failure to notify SafeWork NSW of a notifiable incident, even where management was aware of the injury from the day it occurred, attracts a separate penalty and was treated as a distinct offence warranting its own fine.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 38
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 22
- 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 Youkhana [2004] NSWCCA 412