Citation: SafeWork NSW v Zammit Ham & Bacon Curers Pty Ltd [2020] NSWDC 178
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Strathdee DCJ
Background
The defendant is a meat processing company that had operated for approximately 66 years, employing around 200 workers at its Pendle Hill facility. On 7 September 2017, a licensed forklift operator with six years' experience was manoeuvring a forklift on a loading dock approximately one metre above a concrete ramp. As he reversed and turned, the rear wheel of the forklift rolled off the unprotected edge of the dock, causing the forklift to topple onto the ramp below.
The operator, who was not wearing a seatbelt, was thrown from the seat and became trapped between the forklift and the ramp surface. Co-workers used an excavator to lift the forklift and free him. He was taken to Westmead Hospital and underwent surgery for a sigmoid colon tear and a retroperitoneal haematoma (internal bleeding behind the abdominal cavity).
SafeWork NSW prosecuted the company for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011 (NSW). The defendant pleaded guilty on 14 October 2019, and the matter came before the District Court for sentencing.
Legal Issues
- What was the appropriate penalty for a Category 2 offence under s 32 of the Work Health and Safety Act 2011, carrying a maximum fine of $1,500,000?
- What was the objective seriousness of the offence, having regard to the nature of the risk and the defendant's failures?
- What mitigating and aggravating factors applied, including the guilty plea, remorse, cooperation, prior record, and the impact of COVID-19 on the defendant's business?
- What discount should be applied to reflect the utilitarian value of the early guilty plea?
Decision
The court found the offence fell in the low to mid range of objective seriousness. The risk of serious injury or death from an unprotected loading dock edge was foreseeable and the measures needed to address it were straightforward. The company had no documented risk assessment for mobile plant near an unprotected edge, no traffic management plan, and had not provided adequate instruction or training to forklift operators about the hazard. The only precaution in place was a painted yellow line, which was insufficient.
Several mitigating factors reduced the penalty. The defendant had no prior convictions, cooperated fully with the SafeWork investigation, complied with all prohibition and improvement notices issued after the incident, and demonstrated genuine remorse through its director's affidavit. The business had an otherwise strong 66-year operating history with a general commitment to WHS through toolbox talks and PPE provision.
The court also accepted that the COVID-19 pandemic would significantly affect the defendant's business, given its heavy reliance on supplying restaurants, cafes and clubs. Although no formal application was made under the Fines Act 1996 to vary payment of the fine, the court treated that commercial impact as a relevant consideration in arriving at the penalty.
The court determined a base fine of $100,000 was appropriate and applied a 25% discount for the utilitarian value of the guilty plea under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999, resulting in a final fine of $75,000.
Orders Made
- The defendant is convicted.
- A fine of $75,000 is imposed (reduced from a base of $100,000 by 25% for the guilty plea).
- 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The defendant is to pay the prosecutor's costs in the agreed sum of $25,500.
Key Takeaways
- A failure to install any physical edge protection on an elevated loading dock used daily by forklifts, leaving only a painted line as a warning, was treated by the District Court as a straightforward and foreseeable breach of the WHS duty to eliminate or minimise risks so far as reasonably practicable.
- Under s 32 of the Work Health and Safety Act 2011, the maximum fine for a Category 2 offence by a corporation is $1,500,000. The court assessed the objective seriousness of this offence as low to mid range, resulting in a base fine well below that ceiling.
- A 25% guilty plea discount applied to reflect the utilitarian value of the plea, consistent with the approach under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
- The economic impact of COVID-19 on a defendant's business is capable of operating as a relevant sentencing consideration, even where no formal application under the Fines Act 1996 is made.
- Cooperation with a regulator's investigation, compliance with post-incident notices, the absence of prior convictions, and genuine remorse all contributed to a reduced penalty, illustrating the range of mitigating factors the court will weigh in WHS prosecutions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 34, 35, 36, 37, 38, 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), s 6
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 9
- R v Miria [2009] NSWCCA 68