Citation: SafeWork NSW v Chemstore Group Pty Ltd [2019] NSWDC 598
Court: District Court of New South Wales
Date: 24 October 2019
Judge: Strathdee DCJ
Background
Chemstore Group Pty Ltd was a family-owned company based in Parkes, NSW, that manufactured fibreglass chemical storage tanks. It operated a piece of equipment called a winder, which used a large rotating shaft to form tanks. In 2015, after the shaft fell and broke, a metal A-frame structure was fitted beneath it to catch the shaft if it fell again. That modification created a pinch point of approximately 1 centimetre between the rotating shaft and the catch plate.
On 9 May 2017, a worker named Aaron Punch was tightening bolts on the winder, a task that was performed regularly and while the machine was running. His right arm became caught in the pinch point. He suffered a near-total amputation of his right forearm above the wrist, resulting in permanent disability.
SafeWork NSW prosecuted the company for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011. The defendant pleaded guilty on 17 June 2019, and the matter came before the District Court for sentencing.
Legal Issues
- What was the appropriate penalty for a breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011, prosecuted under s 32 (maximum penalty: $1,500,000)?
- How should the objective seriousness of the offence be assessed in light of the defendant's failures and the severity of the resulting injury?
- What weight should be given to mitigating factors, including the early guilty plea, remorse, and the defendant's capacity to pay a fine?
- Whether prosecution costs should be ordered given the defendant's financial position.
Decision
The court assessed the objective seriousness of the offence as substantial. The defendant had created a pinch point through the 2015 modification to the winder but failed to conduct any risk assessment of that change. There was no guarding, no lock-out mechanism, no safe work procedure for tightening bolts while the machine was running, and no practical means of isolating the winder at all. The Safe Work Method Statement and Safe Operating Procedure were inadequate, and the injured worker had never even been told they existed.
In mitigation, the court accepted several factors in the defendant's favour. These included the early guilty plea (warranting a 25% discount), genuine remorse and contrition, the absence of prior convictions, co-operation with investigators, improvements made after the incident, and the relatively small size of the business. The court also accepted that the defendant was unlikely to reoffend.
The court acknowledged the defendant's limited financial capacity, noting that it rented plant and equipment from a related company, Chemstore International, and did not own real property or plant itself. However, Strathdee DCJ held that the objective seriousness of the offence required a fine that would achieve general deterrence, sending a clear message that employers must take their obligations to protect workers seriously.
On costs, the court exercised its discretion to make no order, treating that waiver as part of the overall balance between the need for deterrence and the defendant's constrained ability to pay.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $120,000 was reduced by 25% for the early guilty plea, resulting in a fine of $90,000.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine ($45,000) was directed to be paid to the prosecutor.
- No order as to costs.
Key Takeaways
- A business's failure to conduct a risk assessment after modifying plant that created an identifiable pinch point was treated as a significant indicator of objective seriousness, even where the company was small and had no prior offending history.
- Under s 32 of the Work Health and Safety Act 2011, where the risk materialises and causes permanent, serious injury to a worker, the sentencing court will impose a fine sufficient to reflect general deterrence even where the defendant has limited capacity to pay.
- The District Court treated the waiver of prosecution costs as a legitimate sentencing mechanism to balance deterrence objectives against a demonstrated inability to meet both a fine and a costs order.
- Mitigating factors, including an early guilty plea (attracting a 25% discount), genuine remorse, post-incident remediation, and co-operation with authorities, reduced the penalty but did not displace the requirement for a meaningful fine.
- Inadequate safe work documentation, such as a procedure that specifies lock-out without providing any means to achieve it, will not operate as a defence or mitigating factor where workers are left without practical safety protections.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 5, 7, 8, 19(1), 32
- Work Health and Safety Regulation (NSW), Part 3.1 (cl 36); Part 5.1, Division 7 (cl 203)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- 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
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108