Citation: SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman [2018] NSWDC 6
Court: District Court of New South Wales
Date: 2 February 2018
Judge: Kearns DCJ
Background
A worker was engaged as a labourer by a mechanical and labour-contracting company, which then contracted his services to a partnership operating a timber processing business in regional NSW. From February to May 2014, the worker was the primary operator of a self-contained wood-splitting machine known as "the Rex," which used a hydraulic ram capable of exerting 26 tonnes of force to split timber.
The Rex was manufactured with a "hold-to-run" two-handed control system, requiring the operator to use both hands simultaneously to activate and control the splitting blade. This design prevented the operator from placing a limb under the blade during operation. Before the worker commenced his role, the handles were physically relocated and a rope was tied between them, effectively allowing the machine to be operated with one hand only. The worker later replaced the rope with a stick and clamps, achieving the same single-handed operation. These modifications were known to the partnership's directors.
The worker was never given access to the operator's manual for the Rex, which was not stored with the machine as intended. The manual explicitly warned against tampering with or modifying any parts. SafeWork NSW prosecuted the corporate employer and both directors of the partnership for category 2 offences under the Work Health and Safety Act 2011, to which all three defendants pleaded guilty.
Legal Issues
- Whether the defendants each breached their health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby committing a category 2 offence under s 32
- How objectively serious the offending was for sentencing purposes
- Whether the defendants' financial circumstances warranted reducing the fines under s 6 of the Fines Act 1996
- Whether the charges should be dismissed without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999, or disposed of without further penalty under s 10A, given the defendants' submissions about the nature of the offending
Decision
All three defendants pleaded guilty. Kearns DCJ characterised the offending as objectively serious. The two-handed control system was a deliberate safety feature designed to eliminate the precise risk that materialised: the operator having a free hand near the splitting blade while the machine was in motion. Removing that feature by modifying the handles and introducing a single-hand operating device did not merely fail to guard against a risk; it actively created one.
The worker was exposed to that risk on most working days over a period of more than three months. His court noted that the offence was the creation and maintenance of exposure to serious injury risk, not merely a momentary or isolated lapse. The worker's induction was deficient, and he was never provided the operator's manual that explicitly prohibited modification of the machine.
On the question of financial means, the court found the evidence put forward under s 6 of the Fines Act 1996 was insufficient. The Hoffman defendants provided limited financial information, omitting details of assets, liabilities, and business finances. The corporate defendant offered only a bare statement that it had restructured and was no longer trading, without explaining what had happened to its assets.
The court declined to apply s 10 (dismissal without conviction or good behaviour bond) or s 10A (conviction without further penalty). Kearns DCJ found nothing trivial about the offending and identified no extenuating circumstances. The exposure occurred repeatedly over months, as a direct result of dismantling a purpose-built safety feature, and the worker's training was inadequate. Those factors placed the case clearly outside the ambit of either provision.
Orders Made
- All three defendants convicted
- H&F Mechanical Pty Ltd fined $160,000
- Max Hoffman fined $32,000
- Laurence Hoffman fined $32,000
- In each case, a moiety (half of the fine) to be paid to the prosecutor under s 122 of the Fines Act 1996
- Each defendant to pay agreed prosecution costs of $10,000
Key Takeaways
- A category 2 offence under the Work Health and Safety Act 2011 is established by the exposure of a worker to a risk of death or serious injury, not by the actual occurrence of injury. Repeated daily exposure over more than three months was treated as a significant aggravating feature.
- Actively removing a purpose-built safety device from plant and machinery, rather than simply failing to install one, increases the objective seriousness of the offending. The court treated the deliberate modification of the two-handed control system as creating, rather than merely tolerating, the risk.
- Under s 6 of the Fines Act 1996, defendants seeking to reduce a fine by reference to their financial means must provide adequate evidence. Bare assertions about restructuring, non-trading status, or limited financial snapshots were insufficient to support a reduced fine in this case.
- Sections 10 and 10A of the Crimes (Sentencing Procedure) Act 1999 are not available where the offending is not trivial, lacks extenuating circumstances, and involved a sustained course of conduct. The District Court's refusal to apply either provision in this matter reflects their limited utility in WHS prosecutions of this character.
- Both the corporate entity and the individual directors were charged and convicted separately. The maximum penalty for the corporation ($1,500,000) was considerably higher than for the individual directors ($300,000 each), though all three received fines well below the respective maximums.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A
- Fines Act 1996 (NSW), ss 6, 122
Cases:
No cases were cited in the judgment.