Citation: SafeWork NSW v O2 Motorsports Pty Ltd; SafeWork NSW v Weissel [2020] NSWDC 201
Court: District Court of New South Wales
Date: 15 May 2020
Judge(s): Russell SC DCJ
Background
A small motor vehicle service and repair business operated by a sole director had been producing biofuel for internal use for approximately two and a half years before a serious incident occurred in August 2017. The biofuel manufacturing process was designed by the director based on internet research, used improvised equipment, and lacked a safe system of work. On the day of the incident, a 19-year-old employee with limited biofuel experience was directed to complete a batch by lunchtime, and a 16-year-old work experience student was enlisted to help.
When the pair carried a bucket of mixed methanol and sodium hydroxide to pour into a heating vat, neither realised the gas burner flame beneath the vat was still lit. The mixture ignited. The employee's clothing caught fire and he suffered serious burn injuries; the student suffered flash burns. The gas burner used was an outdoor camping appliance, the LPG cylinder had been removed from a vehicle, hazardous chemicals were stored in incorrectly labelled containers, and no formal risk assessment had been completed.
Both the company and its sole director pleaded guilty. The company was charged under section 32 of the Work Health and Safety Act 2011 (NSW) with failing to comply with its primary duty of care under section 19(1), thereby exposing workers to a risk of death or serious injury. The director faced the corresponding officer liability charge under section 27(1) for failing to exercise due diligence to ensure the company met that duty.
Legal Issues
- What was the appropriate sentence for the company, having regard to the objective seriousness of the offence, relevant mitigating and aggravating factors, and the guilty plea?
- What was the appropriate sentence for the director, assessed on the same sentencing framework?
- What weight should be given to general and specific deterrence in each case?
- Whether the defendants' capacity to pay affected the quantum of the fines.
- Whether costs should be awarded to the prosecutor.
Decision
Objective seriousness: The court assessed both offences as falling in the low to mid-range of objective seriousness. The risks were foreseeable and arose from multiple compounding failures: using an outdoor-only appliance indoors, connecting an LPG cylinder removed from a vehicle, incorrect labelling and storage of hazardous chemicals, assigning an inexperienced young worker to a hazardous task he had expressed reluctance about, and failing to conduct any risk assessment. The court noted the "Heath Robinson-type contraption" used for manufacture and observed that the harm could have been significantly worse.
Mitigating factors: Both defendants pleaded guilty at an early stage, attracting a 25 per cent reduction in penalty. They had no prior convictions, cooperated fully with the prosecutor, and expressed genuine remorse. The director's relative youth and the absence of any prior incident in two and a half years of biofuel production were also noted. The director had not sought financial gain from the operation and had introduced a number of post-incident safety improvements.
Aggravating factors: The court identified the youth and inexperience of the two workers as an aggravating consideration. The director had been told by the employee that he felt incompetent to complete the task, yet directed him to finish it by lunchtime. The student's presence and vulnerability as a work experience placement added further weight on the aggravating side.
Deterrence and capacity to pay: General deterrence was treated as an important sentencing objective in work health and safety prosecutions. The court noted there was no evidence that either defendant lacked capacity to pay a fine. It applied the principle, confirmed in Unity Pty Limited v SafeWork NSW, that a fine must be calibrated to the scale of the offending and the offender's circumstances, and that a substantial fine may still be warranted by the seriousness of the offence even where a business is modest in size.
Orders Made
- O2 Motorsports Pty Ltd convicted and fined $135,000 (reduced from $180,000 by 25% for the guilty plea).
- Fifty per cent of the company's fine to be paid to the prosecutor under section 122(2) of the Fines Act 1996.
- O2 Motorsports Pty Ltd to pay the prosecutor's costs as agreed or assessed.
- Nathan Weissel convicted and fined $22,500 (reduced from $30,000 by 25% for the guilty plea).
- Fifty per cent of Weissel's fine to be paid to the prosecutor under section 122(2) of the Fines Act 1996.
- Nathan Weissel to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A business that extends its operations into activities outside its core expertise incurs the full weight of WHS duties in relation to those activities, regardless of how informal or occasional the work is.
- Officer liability under section 27 of the Work Health and Safety Act 2011 attaches to a director's failure to exercise due diligence, assessed by reference to the specific failures that created the risk, including inadequate training, absent risk assessments, and the assignment of hazardous tasks to inexperienced workers.
- An early guilty plea attracted a 25 per cent reduction in the base fine for both the company and the individual director, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
- Where a worker has expressly communicated reluctance or lack of competence to a supervisor, and the supervisor nonetheless directs that worker to proceed, this weighs against the defendant in the objective assessment of seriousness.
- General deterrence carries significant weight in WHS sentencing; the District Court confirmed that a substantial fine may remain appropriate even for a small business, where the gravity of the offending and the need to deter similar conduct so require.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2011, cll 34, 39, 44, 342, 344, 346, 379
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432