Citation: SafeWork NSW v Trans Vent Spiral Tubing Pty Ltd [2020] NSWDC 47
Court: District Court of New South Wales
Date: 16 March 2020
Judge: Russell SC DCJ
Background
Trans Vent Spiral Tubing Pty Ltd operated a manufacturing business producing spiral tubing. The work involved moving heavy steel coils, weighing up to 1,100 kg, using forklifts to load machines at the workplace.
On 21 January 2017, a worker, Mr McKenzie, was moving a steel coil weighing at least 400 kg on a single forklift tine without any restraint device such as a jib and sling. After stopping to check the coil's orientation, he dismounted the forklift, pushed the coil to square it up, and the coil fell onto him. He suffered a serious crush injury to his lower left leg requiring emergency surgery, including repair of a fractured tibia and fibula.
SafeWork NSW prosecuted Trans Vent on two charges. The first alleged a breach of the primary duty under the Work Health and Safety Act 2011 (NSW) (the Act), exposing Mr McKenzie to a risk of death or serious injury. The second alleged that Trans Vent had directed or allowed workers, including Mr McKenzie, to operate forklifts without holding the required high risk work licences.
Legal Issues
- What was the objective seriousness of the two WHS offences, having regard to the nature of the risk and the available control measures?
- What weight should be given to mitigating factors, including the guilty pleas, the defendant's prior record, and its expressions of remorse?
- What financial penalties were proportionate to the offences, taking into account Trans Vent's inadequate evidence of its financial position?
- How should prosecution costs be allocated across the two charges?
Decision
On the first charge (the s 32 offence), the court assessed the objective seriousness as sitting in the low to moderate range. The risk of a heavy unrestrained coil falling was foreseeable, and the measures that could have eliminated or reduced the risk, such as using a jib and sling, providing training, and keeping workers clear of the fall shadow, were readily available and not costly. The court noted that a supervisor was absent during the task, no adequate risk assessment addressed the specific hazard, and the unsafe method had been taught to Mr McKenzie by a more senior worker.
On the second charge (the s 43 offence), Trans Vent had allowed workers to operate forklifts without current high risk work licences and had kept no register of licence holdings. The court treated this as a separate and distinct failing, though one connected to the broader pattern of inadequate safety management at the workplace.
The court identified several mitigating factors: Trans Vent had no prior convictions, pleaded guilty, expressed remorse, co-operated with the investigation, and had taken some remedial steps after the incident. However, the court was unimpressed by Trans Vent's evidence of financial hardship. The financial material provided was incomplete, and the court held that a company seeking leniency on capacity-to-pay grounds must put adequate material before the court, including balance sheets, profit and loss statements, and tax returns. Because Trans Vent failed to do so, penalties were imposed without any reduction for financial incapacity.
The court applied a 25% reduction to both fines to reflect the guilty pleas, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Orders Made
- Trans Vent Spiral Tubing Pty Limited convicted on both charges.
- For the s 32 offence: fined $75,000 (reduced from a starting point of $100,000 by 25% for the guilty plea).
- For the s 43 offence: fined $15,000 (reduced from a starting point of $20,000 by 25% for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of each fine to be paid to the prosecutor.
- Trans Vent to pay the prosecutor's agreed costs of $40,000 (allocated to the s 32 prosecution).
- Each party to pay its own costs on the s 43 prosecution.
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 does not require that injury actually occur; exposing a worker to a risk of death or serious injury is sufficient. Here, the risk materialised in serious injury, which the District Court treated as relevant to objective seriousness without it being the gravamen of the offence.
- Transporting a heavy steel coil on a single forklift tine without a jib, sling, or any restraint was found to be an obvious and foreseeable hazard that straightforward, low-cost control measures could have addressed.
- Allowing workers to operate forklifts without current high risk work licences, and failing to maintain a licence register, constituted a separate and distinct WHS breach beyond the primary duty failure.
- Where a corporate defendant seeks a reduced fine based on limited financial capacity, selective or incomplete financial evidence will not suffice. The District Court confirmed that, at minimum, balance sheets, profit and loss statements, and tax returns must be placed before the court.
- Absence of prior convictions, a guilty plea, co-operation with the regulator, and post-incident remediation were each recognised as mitigating factors, but their combined effect resulted in only modest reductions from what the court characterised as relatively low starting-point fines given the objective seriousness of the conduct.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43
- Work Health and Safety Regulation 2011 (NSW), Sch 3, cll 34-36, 81, 205-206
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- 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
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465