Citation: SafeWork NSW v E G Knight & Sons Pty Ltd [2019] NSWDC 336
Court: District Court of New South Wales
Date: 19 July 2019
Judge: Strathdee DCJ
Background
The defendant was a family-run mixed farming company operating several properties near Mendooran in regional NSW. The business employed farm labourers on an as-needed basis, including backpackers. Two such workers, a man and his girlfriend, were engaged in April 2017 to perform general labouring tasks including operating farm machinery.
On 9 May 2017, one of those workers attempted to step over the unguarded intake hopper of a mobile grain auger while it was running. He lost his balance, and his left foot became entangled in the rotating screw mechanism. He suffered serious injuries including lacerations, fractures, tendon damage, and a severe degloving injury. He underwent surgery in Dubbo before being airlifted to Royal North Shore Hospital, where he remained as an inpatient for eleven weeks and had multiple operations.
The defendant pleaded guilty to failing to comply with the primary duty of care under section 19(1) of the Work Health and Safety Act 2011, an offence under section 32 of that Act, carrying a maximum penalty of $1,500,000.
Legal Issues
- Whether the defendant breached its primary duty to ensure, so far as reasonably practicable, the health and safety of workers
- The objective seriousness of the offence and how that informed the sentencing exercise
- What weight to give mitigating factors, including the guilty plea, financial hardship, and extra-curial punishment
- Whether alternative orders such as a WHS undertaking or a training order were appropriate in place of, or in addition to, a monetary fine
- What fine was proportionate given the defendant's very limited capacity to pay
Decision
The court found the offence to be objectively serious. The defendant was aware of the risks posed by the unguarded auger, knew that guards were available, but had not installed them, conducted no risk assessment, and had no formal safety systems, written procedures, or documented training. Telling workers verbally that the hopper was dangerous was not accepted as a satisfactory substitute for guarding or a formal safe work system.
The risk that materialised was entirely foreseeable. The auger had no permanently fixed guards over the hopper, the rotating screw flighting, the drive belts, or the motor. There was no start or stop button. No operator's manual was held. Workers simply learned on the job. The court treated the absence of any safety management system as a significant aggravating feature.
Mitigating factors included the early guilty plea (attracting a 25% discount), the defendant's demonstrated remorse, cooperation with the investigation, steps taken after the incident to install guarding and improve safety systems, the absence of prior convictions, and the defendant's limited financial capacity. The court also treated the obligation to pay the prosecutor's agreed costs of $25,200 as a meaningful component of the overall punishment.
The court rejected submissions that a WHS undertaking or training order were appropriate alternatives, accepting the prosecution's position that the objective seriousness of the offence and the fact that the risk had actually come home made those options unsuitable. Absent the mitigating factors and financial position, the court assessed the appropriate fine at $100,000. That figure was reduced by 25% for the plea, producing a notional fine of $75,000, but the court ultimately imposed a fine of $5,000 on account of the defendant's very limited capacity to pay.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011
- The court recorded that the appropriate fine, but for the mitigating factors and financial matters, would have been $100,000, reduced to $75,000 for the early plea
- A fine of $5,000 was imposed
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor
- The defendant was ordered to pay the prosecutor's agreed costs of $25,200 (inclusive of GST)
Key Takeaways
- The District Court confirmed that verbal warnings to workers about dangerous machinery do not discharge a duty-holder's obligation to guard that machinery or implement formal safe work systems under the Work Health and Safety Act 2011.
- Awareness of a risk, combined with knowledge that control measures such as guards are available, operates as an aggravating factor in sentencing: the defendant cannot point to ignorance to reduce culpability.
- A court assessing penalty under the Act may treat prosecution costs and the defendant's own legal costs as components of the overall punishment, particularly where financial capacity to pay a fine is demonstrated to be very limited.
- Where the risk materialised in actual injury and the offence is objectively serious, alternative orders such as WHS undertakings and training orders may be refused as insufficient responses to the need for general and specific deterrence.
- Significant disparity between the notional appropriate fine ($75,000 after the plea discount) and the fine actually imposed ($5,000) is permissible where evidence of very limited financial capacity is accepted, though the total burden on the defendant also included $25,200 in prosecutor's costs.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 5, 8, 19(1), 32, 234, 235, 239
- Work Health and Safety Regulation 2011 (NSW), cls 34, 35, 208
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay)
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100
- Jahandideh v R [2014] NSWCCA 178
- McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310
- SafeWork NSW v Samuels [2019] NSWDC 111
- SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211
- WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108