Citation: SafeWork NSW v B & J Benchtops Pty Ltd [2019] NSWDC 674
Court: District Court of New South Wales
Date: 18 November 2019
Judge: Scotting DCJ
Background
A small manufacturing company produced and installed benchtops and cabinetry at a factory in Wetherill Park, NSW. For at least seven years before the incident, the company's practice for emptying a scrap bin involved placing a worker inside or on the bin while it was elevated on forklift tynes to a height of roughly 1.8 to 2 metres above the ground. The scrap bin was not a purpose-designed workbox rated for use on a forklift.
On 15 March 2018, a worker was elevated in the scrap bin by a colleague who held no forklift licence. As the worker kicked off-cuts into a skip bin, the scrap bin became unbalanced and fell from the tynes. The worker fell approximately two metres onto a concrete floor, landing on his head and shoulders. He suffered a fractured arm, hip and two ribs, significant head bleeding, and bruising to his face and left eye.
The company's sole director and general manager was charged alongside the company. Both pleaded guilty to failing to comply with their respective health and safety duties under the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury.
Legal Issues
- What was the objective seriousness of the contraventions under s 32 of the Work Health and Safety Act 2011?
- What weight should be given to mitigating factors, including guilty pleas, remorse, cooperation with investigators, the director's personal circumstances, and the company's subsequent cessation of business?
- What was the appropriate financial penalty for each defendant, and what discount should apply for the guilty pleas?
Decision
Objective seriousness: Scotting DCJ assessed the offending as warranting meaningful penalties, though below the statutory maximums of $1,500,000 (company) and $300,000 (director). The risk of serious injury or death from elevating workers on improvised forklift platforms was obvious and the practice had continued for at least seven years without correction. The absence of a formal risk assessment and the use of unlicensed forklift operators compounded the seriousness.
Mitigating factors: The court accepted several matters in mitigation. The director had relied on a co-founder with trade expertise to oversee production safety, and assumed sole control of the business only from late 2014, at which point he was dealing with serious personal health difficulties including a quadruple bypass, diabetes complications, and family caring responsibilities. The company had ceased trading by August 2018 and the director was retired, diminishing the weight of specific deterrence. Post-incident remediation was also taken into account, including forklift access restrictions, a new operator licence, and a revised ground-level emptying system.
Remorse and cooperation: The court expressed particular satisfaction with the director's candour and genuine acceptance of responsibility, noting that his affidavit and conduct demonstrated real contrition. The director had also provided personal support to the injured worker after the incident. Both defendants cooperated fully with SafeWork NSW's investigation.
Guilty plea discount: A 25% discount was applied to both penalties to reflect the utilitarian value of the early guilty pleas, consistent with the principles in R v Thomson and Houlton and R v Borkowski.
Orders Made
- The director, Michael Douglas Herbert, was convicted and fined $15,000 (reduced from a base of $20,000 by 25%).
- B & J Benchtops Pty Ltd was convicted and fined $90,000 (reduced from a base of $120,000 by 25%).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of each fine was ordered to be paid to the prosecutor (SafeWork NSW).
- Both defendants were ordered to pay the prosecutor's costs, agreed at $31,250.
Key Takeaways
- A seven-year practice of elevating workers on forklift tynes using a non-rated scrap bin, combined with the use of unlicensed operators, contributed significantly to the objective seriousness of WHS contraventions under s 32 of the Work Health and Safety Act 2011.
- Personal health circumstances affecting a sole director's capacity to manage workplace operations can constitute a mitigating factor in WHS sentencing, but do not displace the underlying duty owed to workers.
- Where a company has permanently ceased trading and the controlling individual has retired, the court attributed reduced weight to specific deterrence while still emphasising the importance of general deterrence in WHS prosecutions.
- A 25% guilty plea discount was applied, reflecting both the utilitarian value of the plea and an indication of remorse, consistent with established NSW sentencing principles.
- Post-incident remediation, including revised work systems and voluntary cooperation with the regulator, can reduce the penalty imposed, though the District Court noted that such steps came after a serious and preventable injury.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412