Citation: SafeWork NSW v Bullock MFG Pty Limited [2020] NSWDC 457
Court: District Court of New South Wales
Date: 19 August 2020
Judge: Russell SC DCJ
Background
The defendant, Bullock MFG Pty Limited, was a sheet metal manufacturer that operated a factory in Rydalmere, NSW. It engaged labour-hire workers through a third party, including Daniel William, an inexperienced worker whose prior work history was in security, customer service, and car detailing. Mr William commenced work at the factory in July 2017 and had no prior experience operating a die press machine.
On 31 August 2017, Mr William was asked by his supervisor to operate the Wallbank Power Press, a machine that had been in use at the premises for more than 23 years. His supervisor gave a brief demonstration and some verbal instructions before leaving him to operate it alone. Mr William had never operated that press before that day and had not been shown any written operating procedure.
While operating the press, Mr William's right hand became caught in its moving parts. He suffered serious crush injuries and partial amputations to three fingers on his right hand. The incident occurred in part because the press's finger guards were incorrectly adjusted, with gaps between 35 and 90 millimetres, which were large enough to allow an operator's hands to access the die area. A metal flywheel guard on the side of the machine was also loose, held in place only by a piece of timber.
Legal Issues
- Whether Bullock MFG Pty Limited failed to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW) by exposing a worker to a risk of death or serious injury, contrary to section 32 of that Act
- What fine was appropriate having regard to the objective seriousness of the offence, mitigating factors (including an early guilty plea and a good prior safety record), and Bullock's capacity to pay
- What order should be made with respect to prosecution costs
Decision
Bullock pleaded guilty to the offence. The court accepted the agreed statement of facts, which confirmed that Mr William had not received adequate training, instruction, or information before being asked to operate the press. He had not been told about the risks associated with the machine or the control measures in place, and there was no formal induction process. The supervisor gave him only a brief demonstration before leaving him unsupervised.
The court found that the incident was preventable. Had the finger guards been properly adjusted to function as designed, Mr William would not have been able to access the die area and the injury would not have occurred. The press also continued to operate even when the interlocked front guard was only partially closed, because the guard was not correctly adjusted.
In determining the appropriate penalty, the court compared the facts with its earlier decision in SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349, a case with similar factual characteristics in which a base fine of $240,000 had been imposed (subsequently upheld on appeal). The court identified two distinguishing features that justified a lower base fine in the present case: Bullock's good prior safety record, and the extensive and costly remedial steps it had taken following the incident.
The court set a base fine of $220,000 and applied a 25 per cent discount to reflect the early guilty plea, arriving at a final fine of $165,000. The court also took into account the victim impact statement of Mr William, which described profound personal consequences including the loss of his ability to perform DJ and MC work, social isolation, an inability to play volleyball, and severe ongoing financial hardship.
Orders Made
- Bullock MFG Pty Limited convicted and ordered to pay a fine of $165,000
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW)
- Bullock MFG Pty Limited ordered to pay the prosecutor's agreed costs of $36,106
Key Takeaways
- A person conducting a business or undertaking (PCBU) that allows an inexperienced worker to operate dangerous plant without adequate training, proper supervision, or functioning machine guards exposes itself to prosecution under section 32 of the Work Health and Safety Act 2011, which carries a maximum fine of $1,500,000.
- Where machine guarding fails to function as designed, and the failure is the direct cause of a worker's injury, the court will treat that as a significant element of the offence, particularly where a compliant guard would have prevented the incident entirely.
- A good prior safety record and the taking of extensive post-incident remedial steps are recognised mitigating factors that can reduce the base fine below comparable precedents, even where the objective facts are otherwise similar.
- An early guilty plea attracted a 25 per cent discount from the base fine of $220,000, consistent with the approach to discounting under the Crimes (Sentencing Procedure) Act 1999.
- Sentencing courts cannot simply extrapolate a penalty from a comparable case; each matter must be assessed on its own facts, with comparator decisions serving only as a cross-check rather than a fixed reference point.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155, 274
- Work Health and Safety Regulation 2011, cll 203, 208(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27(2), 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349
- Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
- 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
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- 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
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432