Citation: SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Strathdee DCJ
Background
The defendant, an earthmoving equipment supplier, provided a large bulldozer to a waste management facility at Tarago, NSW. Before delivery, the defendant modified the bulldozer by installing a bespoke electric winch system designed to raise and lower a heavy belly plate (weighing between 275 and 290 kilograms) to allow access to the engine bay for maintenance. The wire rope sourced for that system did not meet the hoist manufacturer's specified minimum breaking strength or maximum diameter.
In early February 2017, the defendant's employee, a Resident Field Service Technician with approximately 12 years' experience as a plant mechanic, was asked to remove and clean the bulldozer's cooling system. That task required him to work underneath or very close to the belly plate while it was suspended by the winch. He had not previously used this type of internal winch system, received no formal training on it, and was only made aware of its existence the day before the incident.
On 6 February 2017, the wire rope failed while the belly plate was suspended, causing it to fall. The worker sustained serious injuries and had not returned to work by the time of sentencing.
Legal Issues
- Whether the defendant contravened section 19(1) of the Work Health and Safety Act 2011 (NSW) by failing, so far as was reasonably practicable, to ensure the health and safety of workers while at work in its business or undertaking, contrary to section 32 of that Act.
- What penalty was appropriate, having regard to the objective seriousness of the offence, mitigating and aggravating factors, and the utilitarian value of the guilty plea.
Decision
The defendant pleaded guilty on 2 March 2020 to a category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW), carrying a maximum penalty of $1,500,000. The court accepted the agreed facts and turned to sentencing.
On objective seriousness, the court identified several significant failures: the wire rope fitted to the hoist did not comply with the manufacturer's specifications for either diameter or minimum breaking strength; the technical risk assessment prepared by the defendant did not identify the risk of wire rope failure causing the belly plate to fall; and the worker received no information, instruction or training specific to the winch system before being required to work beneath a suspended load.
On mitigation, the court accepted a number of factors in the defendant's favour. These included genuine remorse and contrition, extensive post-incident remedial steps (the defendant identified and removed similar winch systems from eight other bulldozers across Australia and made the system unavailable for future orders), full co-operation with SafeWork NSW's investigation, ongoing voluntary financial support for the injured worker above his statutory workers' compensation entitlements, good corporate citizenship, and a low likelihood of reoffending. The court set the appropriate base fine at $500,000 and applied a 25% reduction to reflect the utilitarian value of the guilty plea, arriving at a fine of $375,000.
The only aggravating factor the court identified was the significance of the injuries sustained by the worker, who had not returned to work.
Orders Made
- The defendant is convicted.
- A fine of $375,000 is imposed (reduced from a base fine of $500,000 by 25% for the guilty plea).
- 50% of the fine is to be paid to the prosecutor.
- The defendant is to pay the prosecutor's agreed costs of $40,000.
Key Takeaways
- Under section 19(1) of the Work Health and Safety Act 2011 (NSW), a duty holder's failure to ensure worker safety extends to the design and commissioning of bespoke modifications to equipment, including verifying that components meet manufacturer specifications.
- A risk assessment that fails to identify a known and foreseeable failure mode, such as wire rope failure under load, is a significant factor in assessing the objective seriousness of a work health and safety offence.
- Post-incident remediation that effectively eliminates the relevant risk, including removal of the hazardous system from all affected equipment nationally, can be a meaningful mitigating factor in sentencing.
- Voluntary financial support for an injured worker above statutory entitlements was treated by the District Court as a mitigating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), alongside co-operation with regulatory investigations.
- A guilty plea attracted a 25% discount on the base fine, consistent with the utilitarian value of early resolution in work health and safety prosecutions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW)
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markarian v The Queen [2005] NSWIRComm 25
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Orbit Drilling v The Queen [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700