Citation: SafeWork NSW v Williams Pressing and Packaging Services Pty Limited [2018] NSWDC 409
Court: District Court of New South Wales
Date: 20 December 2018
Judge: Russell SC DCJ
Background
The defendant, Williams Pressing and Packaging Services Pty Limited, operated a warehouse at Padstow, New South Wales, providing warehousing and distribution services for the fashion industry. Williams engaged a labour-hire contractor, Phong Warehouse & Distributor Pty Ltd, to supply stock pickers who worked alongside Williams' own employees in the warehouse. Williams owned and operated a high-reach electric forklift used within the same workspace.
On 19 July 2016, the day after a Phong employee (Ms Ta) commenced work in the warehouse for the first time, a Williams forklift operator exited an aisle in reverse. Ms Ta had temporarily left the aisle while the forklift entered, but returned before it exited. Despite the operator sounding the horn and pausing, Ms Ta was unable to clear the area in time, and the right-side wheels of the forklift passed over her feet. She sustained metatarsal fractures to both feet, required surgery, and was hospitalised for three days.
Williams pleaded guilty to a category 2 offence under the Work Health and Safety Act 2011, namely failing to comply with its primary duty of care as a person conducting a business or undertaking, thereby exposing a worker to a risk of death or serious injury. The proceeding before the District Court was a sentencing hearing.
Legal Issues
- What was the appropriate level of objective seriousness of the offence?
- What mitigating and aggravating factors applied?
- What discount should be applied for the early guilty plea?
- How should the parity principle apply, given the co-offender Phong had already been sentenced by a different judge?
- What fine was proportionate, having regard to general and specific deterrence?
- Whether costs should be ordered against Williams and in what amount?
Decision
The court assessed the objective seriousness of the offence as falling in the lower to mid range, while noting the risk of collision between forklifts and pedestrians in a shared warehouse environment is well known and that multiple SafeWork Australia guidance materials addressing exactly that risk were freely available at the time. Williams had an undocumented forklift procedure in place, but it had not conducted a formal risk assessment, had not implemented physical separation barriers, and had not taken sufficient steps to ensure that contractor workers (many of whom were non-English speakers with no prior warehouse experience) were adequately trained and supervised.
In mitigation, the court accepted Williams' early guilty plea (attracting a 25% discount), evidence of remorse and contrition, its cooperation with SafeWork NSW, and the remediation steps taken following the incident, including the development of a documented traffic management plan and physical barriers. The court also noted the personal characteristics of the individual offender were not directly applicable to a corporate defendant, but that the company's post-incident conduct was genuinely remedial.
On the question of parity, the court compared Williams' position with the sentence previously imposed on Phong by Strathdee DCJ. The court found Williams was more culpable than Phong: Williams controlled the premises, owned the forklift, employed its driver, and engaged Phong to supply workers to a warehouse Williams operated. Every factor affecting the risk was within Williams' control. The court acknowledged the difficulty of applying traditional parity principles where Phong's sentence had been reduced on grounds of impecuniosity, a factor not raised by Williams. No issue of capacity to pay arose in Williams' case.
The court determined that a fine of $80,000 was appropriate before discount, reduced to $60,000 after the 25% guilty plea discount. Prosecution costs of $20,000 were agreed between the parties.
Orders Made
- Williams Pressing and Packaging Services Pty Limited convicted.
- Fined $60,000 (being $80,000 reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor.
- Williams ordered to pay the prosecutor's agreed costs of $20,000.
Key Takeaways
- The District Court confirmed that a person conducting a business or undertaking bears primary responsibility under the Work Health and Safety Act 2011 for the safety of contractor workers operating on its premises, particularly where it controls the physical environment and the equipment creating the risk.
- An undocumented system of work, even one that includes some safety requirements, does not satisfy the duty where no formal risk assessment has been conducted, no physical separation controls have been implemented, and contractor workers have not been adequately trained or supervised.
- Parity between co-offenders is relevant to sentencing, but the principle operates with reduced clarity where one offender's sentence was reduced on grounds of impecuniosity not raised by the other. The court assessed Williams as more culpable than its co-offender on the facts, and sentenced accordingly.
- An early guilty plea attracted a 25% discount from the base fine, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999.
- Post-incident remediation, including the development of documented traffic management plans and the installation of physical barriers, was treated as a mitigating factor going to both remorse and reduced need for specific deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Baumer v R (1998) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- DPP v Gregory [2011] VSCA 145
- Green v R [2011] HCA 49
- Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
- Jahandideh v R [2014] NSWCCA 178
- Jimmy v R (2010) 77 NSWLR 540
- Markarian v R (2005) 228 CLR 357
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316