Citation: SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740
Court: District Court of New South Wales
Date: 12 December 2019
Judge: Russell SC DCJ
Background
The defendant was a sole trader who operated a small hydraulic repairs business. In January 2017, he was engaged to remove and repair a 300-kilogram hydraulic cylinder from a tipper trailer at a rural property near Warren in western New South Wales. He organised a work system that involved using a front-end loader fitted with a hay bale fork to lift the cylinder using synthetic slings looped over the tines.
The defendant engaged a certified crane operator and dogman, Scott Bryant, to assist with the job. During the lift, Mr Bryant unexpectedly moved under the raised load to adjust the synthetic slings. His adjustment removed the tension holding the slings on the tines. The slings slipped off, the cylinder fell, struck Mr Bryant on the head, and he died from his injuries.
The defendant pleaded guilty to failing to comply with his work health and safety duty as a person conducting a business or undertaking (PCBU), contrary to section 32 of the Work Health and Safety Act 2011 (NSW), which exposed Mr Bryant to a risk of death or serious injury. The maximum penalty for the offence is a fine of $300,000.
Legal Issues
- What level of objective seriousness should be attributed to the offence?
- What weight should be given to mitigating factors, including the guilty plea and the defendant's personal circumstances?
- How should the defendant's limited financial capacity affect the quantum of the fine?
- Whether an order for prosecution costs should be made given the defendant's capacity to pay.
Decision
The court assessed the objective seriousness of the offence at a moderate level. The defendant failed to conduct any risk assessment, failed to document the work system, and failed to specify either a suitable lifting attachment that could be securely fixed to the cylinder or the use of blocking supports to prevent movement. Those failures exposed workers to the obvious risk of a 300-kilogram load falling. The court accepted, however, that Mr Bryant's decision to move under the load without warning contributed significantly to the incident, and that this was not a foreseeable act within a reasonable risk assessment.
On subjective factors, the court found the defendant had no prior offending, demonstrated genuine remorse, and had suffered significant personal and psychological consequences. A 25% discount was applied for the early guilty plea. The court also accepted that the defendant's business had effectively ceased following the incident and that his capacity to pay a substantial fine was genuinely limited.
Applying the principle that there is no social utility in imposing a fine so severe as to cause bankruptcy, the court moderated the fine significantly from the notional starting point. The court identified the appropriate fine before capacity adjustments at $60,000, then reduced it to $20,000 to reflect limited financial means, and applied a further 25% reduction for the plea of guilty, producing a final fine of $15,000.
On costs, the court took the rare course of ordering each party to bear its own costs. Where a defendant's financial position is such that awarding prosecution costs would undermine the fine's reflection of the offence's objective seriousness, the court held that costs should be reduced, including to zero if necessary.
Orders Made
- The defendant is convicted.
- The defendant is ordered to pay a fine of $15,000.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- Each party is to pay its own costs.
Key Takeaways
- A PCBU's failure to conduct a risk assessment or document a safe work system for a heavy-lift task involving improvised equipment will attract criminal liability under section 32 of the Work Health and Safety Act 2011, even where a co-worker's unexpected act is a proximate cause of the fatal outcome.
- Where a defendant demonstrates limited capacity to pay, the court may substantially moderate a fine below the notional starting point, consistent with the principle from Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 that a fine crippling to a small business may warrant greater reduction than one imposed on a large corporation.
- The evidentiary onus of establishing limited capacity to pay rests on the defendant, and a capacity concession by the prosecutor does not remove the court's obligation to make its own assessment.
- Under clause 219 of the Work Health and Safety Regulation 2011, a person managing or controlling plant used to lift loads must ensure lifting attachments are suitable for the load and that, so far as is reasonably practicable, no loads are suspended or travel over a person unless the plant is specifically designed for that purpose.
- In rare cases where awarding prosecution costs would compromise the fine's capacity to reflect the objective seriousness of the offence, the District Court confirmed it may order each party to bear its own costs, following the approach taken in SafeWork NSW v Mehan [2018] NSWDC 391.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Work Health and Safety Regulation 2011 (NSW), cls 34, 35, 219
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Mehan [2018] NSWDC 391
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566