Citation: SafeWork NSW v Confeta Pty Limited; SafeWork NSW v Cleo Antoniou [2018] NSWDC 392
Court: District Court of New South Wales
Date: 13 December 2018
Judge(s): Russell SC DCJ
Background
A manufacturing company operating out of two Marrickville premises produced baking products using heated folding cup machines. A newly employed machine operator, working unsupervised just two days into her role, suffered severe crush and burn injuries to her right hand when the machine's unguarded die activated while her hand remained on the die plate. She was hospitalised for over a month and sustained significant tissue loss, fractures, and serious burns.
The company had purchased the machines without guarding and had not modified them to include a two-hand control device, which would have prevented activation while an operator's hand was on the die plate. There were no safe work method statements, no documented risk assessments, no operator manuals, and no recorded training or induction for the injured worker. The company also failed to notify the regulator of the incident and disturbed the site before an inspector arrived.
The sole director responsible for day-to-day management faced a separate charge for failing to exercise due diligence to ensure the company met its health and safety obligations. Both the company and the director pleaded guilty to their respective offences.
Legal Issues
- Whether the company, as a person conducting a business or undertaking (PCBU), had failed to comply with its primary health and safety duty under s 19 of the Work Health and Safety Act 2011 (WHS Act), exposing a worker to a risk of death or serious injury contrary to s 32.
- Whether the company had failed to notify SafeWork NSW of a notifiable incident under s 38 of the WHS Act.
- Whether the company had unlawfully disturbed the incident site under s 39 of the WHS Act.
- Whether the director had failed to exercise due diligence to ensure the company's compliance with its duty under s 19(2), contrary to s 27 and s 32 of the WHS Act.
- What penalties were appropriate for each offence, having regard to objective seriousness, mitigating and aggravating factors, pleas of guilty, general and specific deterrence, and the totality principle.
- Whether it was appropriate to sentence the director by way of a bond or training order rather than a conviction and fine.
Decision
The court found the primary WHS offence committed by the company to be of moderate objective seriousness. The risk of hand injury from an unguarded heated die was entirely foreseeable, and the company had failed across multiple fronts: no guarding, no two-hand control device, inadequate induction and training, no documented safe work procedures, and no formal risk assessment. The court noted that two prior similar incidents had occurred involving the same machines, of which the director was unaware, which the court treated as an aggravating factor against the company but not the director personally.
On the notification and site disturbance offences, the court found that supervisory and managerial staff were aware of the incident on the day it occurred, and the obligation to notify arose immediately. The failure to notify was treated as a separate and significant breach. Both offences were assessed at the lower end of the scale for objective seriousness.
Regarding the director's liability under s 27, the court declined to deal with the matter by way of bond or training order. His Honour noted that a director responsible for day-to-day management bears an obligation to ensure those under their supervision are properly carrying out their duties, which extends to verifying that documented safety procedures exist. The director's unawareness of prior incidents and the total absence of safety documentation did not reduce culpability; rather, due diligence required the director to ask to see such documents and to be aware of the risks.
Guilty pleas attracted discounts of 25% for the company and 15% for the director, reflecting the respective timing and circumstances of each plea. The court applied the totality principle and imposed separate fines for each offence.
Orders Made
Confeta Pty Limited:
- Convicted of an offence under s 19 of the WHS Act; fined $150,000 (reduced from $200,000 by 25% for guilty plea).
- Convicted of an offence under s 38 of the WHS Act; fined $3,750 (reduced from $5,000 by 25% for guilty plea).
- Convicted of an offence under s 39 of the WHS Act; fined $3,750 (reduced from $5,000 by 25% for guilty plea).
- Ordered to pay the prosecutor's costs as agreed or assessed.
- 50% of each fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
Cleo Antoniou:
- Convicted of an offence under s 27 of the WHS Act; fined $25,500 (reduced from $30,000 by 15% for guilty plea).
- Ordered to pay the prosecutor's costs as agreed or assessed.
- 50% of the fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
Key Takeaways
- A PCBU's failure to guard machinery against foreseeable hand injuries, combined with the absence of documented training, safe work procedures, and formal risk assessments, will support a finding of moderate objective seriousness under the WHS Act, even where the maximum penalties are substantially higher than those imposed.
- The District Court confirmed that a director's unawareness of prior similar incidents or the absence of safety documentation does not, of itself, mitigate culpability for a s 27 due diligence offence; the duty of due diligence requires active inquiry, including asking to see safety documents.
- Sentencing by way of bond or training order was held to be inappropriate for a director who bore day-to-day responsibility for management and who had not taken steps to ensure basic safety systems were in place.
- Under s 38 of the WHS Act, the obligation on a PCBU to notify the regulator of a notifiable incident is triggered immediately upon awareness by any person in a supervisory or managerial role, not only upon awareness at the director level.
- Guilty pleas attracted differentiated discounts: 25% for the corporate offender and 15% for the director, reflecting the distinct timing and utility of each plea to the administration of justice.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32, 35, 36, 38, 39
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- 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 McNaughton (2006) 66 NSWLR 566
- R v Borkowski (2009) 195 A Crim R 1
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Veen v R (No. 2) (1988) 164 CLR 465
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Jahandideh v R [2014] NSWCCA 178