Citation: SafeWork NSW v Haines Bros Earthmoving Pty Limited [2019] NSWDC 69
Court: District Court of New South Wales
Date: 22 March 2019
Judge: Strathdee DCJ
Background
The offender, an earthmoving and plant hire company, had supplied a Volvo Articulated Hauler Tipper Truck (the Dump Truck) to a waste processing site at Eastern Creek under a hire arrangement with Dial A Dump Industries. As part of that arrangement, the offender also provided a plant operator and repair and maintenance services for the Dump Truck.
On 29 June 2016, a plant mechanic employed by the offender was directed to attend the site to carry out repairs. To access part of the truck's mechanical systems, the dump body needed to be raised. While he was working beneath it, the dump body unexpectedly lowered and crushed him between the body and the chassis.
The mechanic suffered unstable fractures at three lumbar levels (L3, L4 and L5), a broken hand requiring surgical fixation with seven screws and two plates, and psychological injuries. He underwent rehabilitation to regain the ability to walk and had not returned to work by the time of sentencing.
Legal Issues
- Whether the offender, as a person conducting a business or undertaking, breached its duty under s 19(1) of the Work Health and Safety Act 2011 by failing to ensure the health and safety of the injured worker
- What constituted the appropriate penalty under s 32 of the Act, having regard to the objective seriousness of the offence, aggravating and mitigating factors, and the guilty plea
- The applicable discount for a guilty plea entered at the first available opportunity
Decision
The offender pleaded guilty to contravening its health and safety duty under s 19(1) of the Act, thereby exposing the worker to a risk of death or serious injury. The Dump Truck was fitted with two independent locking systems, a tipping lever lock and a dump body lock, designed specifically to prevent the dump body from lowering while workers were beneath it. The offender's Safe Work Method Statement (SWMS), prepared in May 2015, made no reference to either control, and a risk assessment completed in September 2015 was similarly silent on the hazard. Neither document was adequate.
The court assessed the objective seriousness of the offence as significant, though not at the highest end of the range. The risk could only materialise if three things occurred simultaneously: neither locking device was engaged, the engine was turned on, and a worker was present beneath the raised body. The court accepted on that basis that the risk was not obvious, nor readily foreseeable in isolation, but the offender's failure to integrate the manufacturer's own safety instructions into its training, signage, or documentation was plainly inadequate.
Mitigating factors included the offender's cooperation with SafeWork during the investigation, its clean prior record, genuine remorse, and a series of remedial steps taken after the incident. Those steps included issuing a safety alert, commencing daily toolbox talks, affixing danger signage to all dump trucks, updating the SWMS, and appointing a full-time WHS Coordinator from March 2018. The serious injuries suffered by the worker were treated as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
The court set a base fine of $120,000 and applied a 25% discount for the guilty plea entered at the first available opportunity, reducing the fine to $90,000.
Orders Made
- The offender is convicted of the offence under s 32 of the Work Health and Safety Act 2011
- A fine of $90,000 is imposed (reduced from a base of $120,000 by a 25% guilty plea discount)
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)
- The offender is to pay the prosecutor's agreed costs of $32,300
Key Takeaways
- The District Court confirmed that a failure to incorporate manufacturer-specified safety controls into a SWMS, risk assessments, or worker training can constitute a breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011, even where the risk was not immediately obvious.
- A 25% sentencing discount applied where the offender pleaded guilty at the first available opportunity, consistent with ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999.
- Serious physical injury to the worker was treated as a statutory aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, contributing to the overall penalty assessment.
- Genuine post-incident remediation, including daily toolbox talks, updated documentation, new signage, and the appointment of a dedicated WHS Coordinator, was accepted as evidence of remorse, contrition, and good prospects of rehabilitation.
- Under s 122(2) of the Fines Act 1996, the court directed that 50% of the fine be paid to the prosecuting authority, a mechanism worth noting in WHS prosecutions brought by SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 7, 8, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e), 21A(3)(h), 21A(3)(k), 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Baumer v R (1998) 166 CLR
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610
- Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29
- Muldrock v The Queen [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- R v Cini [2009] VSCA 239
- R v Wilkinson (No 5) [2009] NSWSC 432