Citation: Safework NSW v ABC Tissue Products Pty Ltd [2020] NSWDC 640
Court: District Court of New South Wales
Date: 23 October 2020
Judge: Scotting DCJ
Background
A tissue paper manufacturer operating a production facility at Wetherill Park pleaded guilty to a work health and safety offence after a worker suffered catastrophic injuries when a nearly two-tonne jumbo roll of tissue paper fell from a forklift and struck her. The incident occurred in February 2017 inside the building's loading bay, an area through which forklifts regularly transported large rolls approximately ten times per day.
At the time of the incident, a forklift driver entered the loading bay carrying the roll forward-facing, which obscured his line of sight. The injured worker had walked back from the toilets via the loading bay rather than the designated pedestrian walkway marked with yellow floor markings. The driver did not see her, released the roll, and it contacted her within approximately five seconds of entering the building.
The worker suffered a major traumatic brain injury including a fractured skull, multiple brain haemorrhages, brain contusions, and a partially collapsed lung. She required neurosurgery, spent six days in an induced coma, and had not returned to full-time work by the time of sentencing. She continues to experience ongoing cognitive impairment, memory loss, and physical limitations.
Legal Issues
- What fine was appropriate for the offence under section 32 of the Work Health and Safety Act 2011, having regard to the maximum penalty of $1.5 million?
- How should objective seriousness be assessed, including the adequacy of the employer's risk controls prior to the incident?
- What aggravating factors applied, particularly the severity of the harm caused to the worker?
- What mitigating factors applied, including the guilty plea, remorse, cooperation with investigators, and prospects of rehabilitation?
- What discount was appropriate for the utilitarian value of the guilty plea?
Decision
The District Court found the offence was of moderate objective seriousness. The company had existing WHS systems in place, including a Forklift Operator Safe Driving Policy, but that policy was routinely not followed because physical constraints in the loading bay made compliance impossible. Specifically, the forklift was too large to reverse into the bay while carrying a jumbo roll, meaning forward entry with an obscured view was a known and accepted practice at the site. There were no traffic management controls specific to the loading bay: no exclusion zone, no barricades, no bollards, no floor markings, and no signage to separate forklifts from pedestrians in that area.
On aggravation, Scotting DCJ found that the injury caused was substantially more serious than the baseline for the offence, which requires only the creation of a risk rather than actual injury. The harm to the worker was ongoing, severe, and had significantly curtailed her capacity to work and live normally.
On mitigation, the court found several factors in the company's favour. The company had good prospects of rehabilitation, demonstrated by remedial steps taken after the incident. It cooperated fully with SafeWork NSW's investigation. Remorse was expressed through company representatives at sentencing, and the company had provided assistance to the injured worker. The court also characterised the company as an exceptional corporate citizen with significant charitable contributions and its role as a major employer.
A 25% discount applied for the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski. The court set the base fine at $400,000 and reduced it to $300,000 after applying that discount.
Orders Made
- ABC Tissue Products Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- Fine of $300,000 imposed (base fine of $400,000 reduced by 25% for the guilty plea).
- The offender ordered to pay the prosecutor's costs in the agreed sum of $40,000.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ordered to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- An employer's WHS duty under section 19(1) of the Work Health and Safety Act 2011 can be breached even where a written safety policy exists, if that policy is routinely unworkable in practice and management is aware of non-compliance.
- The absence of a site-specific Traffic Management Plan for a loading bay regularly used by heavy forklifts and accessed by pedestrians was a significant failure in risk control.
- Under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of substantial harm requires the court to be satisfied beyond reasonable doubt that the harm was greater than ordinarily expected for the offence; here, the catastrophic and enduring nature of the worker's injuries satisfied that threshold.
- A 25% guilty plea discount was applied, reflecting both the utilitarian value of the plea and its indication of remorse, consistent with established sentencing principles.
- The District Court assessed the offence as moderate in objective seriousness, placing the $300,000 fine well below the $1.5 million statutory maximum, with existing WHS systems and strong mitigating factors distinguishing the case from more serious examples of WHS contraventions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(h), (i), (k), (m), 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v McNaughton (2006) 66 NSWLR 566
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412