Citation: SafeWork NSW v Bay Trusses & Frames Pty Ltd [2020] NSWDC 317
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Strathdee DCJ
Background
The defendant company manufactured and transported building frames and trusses, operating across three sites in Beresfield, NSW. In July 2017, a contracted truck driver suffered serious injuries at one of those sites when a pack of steel joists being loaded by forklift rolled off the forklift tynes at an angle, causing him to move toward the edge of the truck trailer and fall to the concrete below. He sustained a fractured cervical vertebra, traumatic brain injury, central cord syndrome, nerve damage, and partial rotator cuff tears, and had not returned to work by the time of sentencing.
The defendant's safety systems were significantly deficient. The existing Safe Operating Procedure and risk assessments had been prepared for a different worksite, were not updated for the site where the incident occurred, and had not been seen by the forklift operator. There were no pedestrian exclusion zones, no designated safety zone for the truck driver, no requirement for the forklift operator to maintain a line of sight to the driver, and no prohibition on drivers accessing the trailer while loading was underway.
SafeWork NSW prosecuted the defendant for failing to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury, contrary to section 32 of that Act. The defendant pleaded guilty on 16 December 2019.
Legal Issues
- What was the appropriate penalty for a section 32 offence under the Work Health and Safety Act 2011, given the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the guilty plea, remediation steps, remorse, and the defendant's community and charitable activities?
- How should a prior workplace safety conviction (involving a fatality) be treated as an aggravating factor?
- Whether the defendant's financial position, including potential COVID-19 impacts, warranted a reduction in the fine amount.
Decision
The court assessed the objective seriousness of the offence as significant. Multiple systemic failures existed at the site: outdated and site-specific safety procedures had not been transferred to the incident location, the forklift operator had not been formally trained on the loading procedure, relevant safety guidance from the Plant Code of Practice and the Freight Guide was available but not implemented, and no adequate controls were in place to keep the truck driver clear of the loading operation. The risk of serious injury or death in such a setting was foreseeable and preventable.
On the question of aggravation, the court noted a prior conviction arising from a separate incident in which a worker (Mr Bligh) had died. The court treated that prior conviction as an aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The significant volume of remediation required after the 2017 incident also raised concerns about the defendant's overall attitude to workplace safety.
The court acknowledged mitigating factors including genuine remorse, early guilty plea, cooperation with investigators, post-incident remediation, and the defendant's charitable and community contributions. However, the prior conviction substantially diminished the weight available from those factors, particularly the claim of prior good character.
On capacity to pay, the court rejected the submission that COVID-19 related financial pressures warranted a reduced fine. No evidence of actual incapacity was before the court, and the defendant's post-incident expenditure on property and site improvements did not support a finding of financial hardship. The court assessed a starting fine of $400,000 and applied a 25% guilty plea discount, arriving at a final penalty of $300,000.
Orders Made
- The defendant is convicted.
- The defendant is ordered to pay a fine of $300,000 (reduced by 25% from a starting figure of $400,000 to reflect 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 $27,500.
Key Takeaways
- A guilty plea discount of 25% was applied where the plea was entered at a relatively early stage and the court accepted it carried genuine utility.
- Under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, a prior conviction for a workplace safety offence (even involving a different incident and workplace) operates as an aggravating factor and can substantially reduce the weight otherwise available from good character evidence, including charitable and community conduct.
- Systemic failures across multiple safety dimensions, including inadequate risk assessments, untrained operators, and absence of exclusion zones, informed a finding of significant objective seriousness, even where no single egregious act was identified.
- The District Court confirmed that a defendant bears the evidential onus of establishing incapacity to pay before a court will exercise discretion to reduce a fine on financial grounds; general assertions about industry conditions are insufficient.
- Available safety guidance material (such as codes of practice and industry guides) published before an incident is relevant to assessing whether a risk was foreseeable and whether practicable control measures were known and accessible to the defendant.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Workplace Health and Safety Regulations 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), s 6
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 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 96
- R v Miria [2009] NSWCCA 68
- Mahdi Jahandideh v The Queen [2014] NSWCCA 179