Citation: SafeWork NSW v Shaun David Scott Mehan [2018] NSWDC 391
Court: District Court of NSW
Date: 13 December 2018
Judge: Russell SC DCJ
Background
The defendant was the sole director of a company that supplied, delivered, and installed air conditioning systems. In April 2015, he personally supervised two apprentices (a first-year and a second-year) in manually carrying a 525 kg air conditioning unit down a narrow staircase to a basement restaurant in Sydney's CBD. No mechanical aids were used.
During the descent, one of the apprentices was unable to sustain the weight of the unit, causing all three men to lose control. The unit fell and struck the first-year apprentice, pinning his lower torso and legs and partially de-gloving his right heel. The injured worker returned to work approximately three months later.
SafeWork NSW prosecuted the director personally under the Work Health and Safety Act 2011 (the Act) for failing to exercise due diligence to ensure the company complied with its safety obligations. The task was characterised as a "hazardous manual task" under both the relevant regulation and the SafeWork NSW Hazardous Manual Tasks Code of Practice, requiring the use of mechanical aids or formalised team-handling procedures that were not implemented.
Legal Issues
- Whether the defendant, as a person with a health and safety duty under s 27 of the Act (as director), failed to exercise due diligence to ensure the company complied with its primary duty under s 19(2)
- How the objective seriousness of the offence should be assessed for sentencing purposes
- What weight should be given to mitigating factors, including an early guilty plea and demonstrated remorse
- How the defendant's financial incapacity to pay affected the calculation of the appropriate fine and any costs order
Decision
The defendant pleaded guilty to the charge under s 32 of the Act, which carries a maximum penalty of $300,000 for an individual. The court accepted the agreed statement of facts, which established that no mechanical devices were used, no adequate risk assessment was conducted, and the company's existing Safe Work Method Statement did not address the risks of manually transporting the unit down the staircase.
Russell SC DCJ assessed the objective seriousness of the offence and determined that, absent other considerations, a fine of $30,000 was appropriate. The court noted that the relevant Code of Practice required mechanical aids or formalised team-lifting procedures for tasks of this kind, and that those measures were readily available and not used.
In mitigation, the court weighed the defendant's early guilty plea, his genuine acceptance of full responsibility, his remorse (including a personal relationship with the injured worker beyond the employment context), and the subsequent remedial steps taken by the company. The court also noted the defendant's severe financial position: his company was in liquidation, he had no assets, carried significant debts, and had less than $4,000 in savings.
To avoid imposing a crushing penalty that would prevent the defendant from re-establishing himself financially, the court reduced the fine from $30,000 to $10,000 on grounds of financial incapacity, then applied a further 25% discount for the early guilty plea, arriving at a final fine of $7,500. The court also ordered each party to bear its own costs, prioritising the integrity of the fine as a reflection of the offence's seriousness over any costs recovery.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- The court assessed the appropriate fine at $30,000, reduced to $10,000 for financial incapacity, and further reduced by 25% for the early guilty plea.
- The defendant was ordered to pay a fine of $7,500.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- Each party was ordered to pay its own costs.
Key Takeaways
- A director's personal liability under s 27 of the Work Health and Safety Act 2011 can be engaged where the director is directly supervising the unsafe work, not merely overseeing it at a remove.
- The District Court treated the absence of mechanical aids for a 525 kg load, the inadequate risk assessment, and the failure to address manual handling risks in the Safe Work Method Statement as central to the objective seriousness of the offence.
- Where a defendant's financial incapacity is established on the evidence, the court may reduce a fine below what the offence's objective seriousness would otherwise warrant, provided the fine still reflects that seriousness to the extent reasonably possible.
- On the approach to costs, the court accepted the prosecutor's submission that costs should be addressed first and reduced (including to zero where necessary) before the fine is adjusted, so the fine continues to reflect the gravity of the offending.
- Genuine remorse, acceptance of full responsibility, an early guilty plea, and post-incident remediation of work practices each carried weight in mitigation, though none individually determined the outcome.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 27, 32, 274, 275
- Work Health and Safety Regulation 2011 (NSW), cl 5
- SafeWork NSW Hazardous Manual Tasks Code of Practice 2011
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases Cited
- Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1998) 166 CLR 51
- Veen v R (No 2) (1988) 164 CLR 465
- R v Rahme (1989) 43 A Crim R 81
- Jahandideh v R [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432