Citation: SafeWork NSW v Banana's Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk [2020] NSWDC 579
Court: District Court of NSW
Date: 2 October 2020
Judge: Russell SC DCJ
Background
A company providing arborist services under the trading name "Fast Call Trees," together with its sole director, were prosecuted by SafeWork NSW following a serious workplace incident on 16 February 2017. A groundsman employed by the company was assisting with the removal of a phoenix palm tree at a residential property in Asquith, NSW.
During the job, a palm tree barrel proved too large to fit in the truck bin. Two workers climbed into the bin to cut the barrel shorter with chainsaws. When they attempted to climb back out, the groundsman fell from the top of the bin wall, a height of approximately 3.08 metres, onto the road below, landing on the back of his head.
The worker sustained a basal skull fracture, broken ribs, a collapsed lung, and a T12 spinal cord transection. The spinal cord injury resulted in permanent paraplegia from the waist down, with profound and lifelong consequences for the worker and his family.
Legal Issues
- Whether the company, as a person conducting a business or undertaking, failed to comply with its primary work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury contrary to s 32(1).
- Whether the sole director, as an officer of the company, failed to exercise due diligence under s 27(1) of the Act to ensure the company complied with its duty, also contrary to s 32(1).
- What penalties were appropriate, having regard to objective seriousness, mitigating and aggravating factors, deterrence, and the guilty pleas.
- Whether a training order should be made against the director under s 241 of the Act.
Decision
Both the company and its sole director pleaded guilty. The court accepted an Agreed Statement of Facts that set out a range of systemic failures. There was no safe means of access to or egress from the truck bin, no fixed ladder, no developed or enforced safe work method for loading the truck, and the existing Safe Work Method Statement had not been reviewed before the incident. The director had left the worksite before the incident occurred, and the method of loading the tree had not been properly discussed with workers beforehand.
The court assessed the offending as falling in the low-to-mid range of objective seriousness. The risk was foreseeable and the measures to address it were not costly or complex. The absence of safe access and egress, the lack of supervision, and the failure to ensure untrained workers understood their roles were all identified as failures contributing to the incident.
In fixing the penalty, the court took into account mitigating factors including the guilty pleas (warranting a 25% reduction), the absence of prior convictions, and cooperation with the investigation. The court also took account of the profound impact on the injured worker as reflected in his victim impact statement, and the need for both general and specific deterrence.
Before reducing for the guilty plea, the court assessed the appropriate fine for the company at $300,000 (against a maximum of $1,500,000) and for the director at $60,000 (against a maximum of $300,000). The director also consented to a training order.
Orders Made
Banana's Truck & Tipper Hire Pty Ltd:
- Convicted on 30 September 2020.
- Fined $225,000 (being $300,000 reduced by 25% for guilty plea).
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW).
- Ordered to pay the prosecutor's costs.
David Monk:
- Convicted on 30 September 2020.
- Fined $45,000 (being $60,000 reduced by 25% for guilty plea).
- 50% of the fine directed to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW).
- Ordered under s 241 of the Work Health and Safety Act 2011 (NSW) to undertake a due diligence training course for senior managers and company directors conducted by a Registered Training Organisation, within six months, and to provide evidence of satisfactory completion to the prosecutor.
- Ordered to pay the prosecutor's costs in the agreed sum of $25,000.
Key Takeaways
- A failure to provide any safe means of access to or egress from a truck bin, combined with absent or unenforced systems of work, was sufficient to constitute a breach of the primary WHS duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) exposing a worker to a risk of death or serious injury.
- The District Court placed the offending in the low-to-mid range of objective seriousness, noting that the risk was foreseeable and that the cost of prevention would have been low.
- Directors who are the sole officer of a small business and personally involved in day-to-day operations are directly subject to the officer due diligence duty under s 27(1), and cannot avoid liability merely because they had left the worksite before the incident occurred.
- A 25% reduction in penalty was applied for guilty pleas entered by both defendants, consistent with the sentencing principles in the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under s 241 of the Work Health and Safety Act 2011 (NSW), courts may order individual defendants to complete accredited due diligence training as part of the sentence; here, that order was made by consent against the director.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32, 241, 274
- Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- 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