Citation: SafeWork NSW v JBS Australia Pty Limited [2020] NSWDC 678
Court: District Court of New South Wales
Date: 6 November 2020
Judge: Strathdee DCJ
Background
The defendant is a large meat processing company operating a cattle feedlot near Quirindi in northern New South Wales. On 16 February 2017, a fire broke out in a paddock on the property during harvesting operations. Several employees and a contractor responded to fight the fire using a water truck and improvised equipment.
The contractor, who was operating a front-end loader to create firebreaks, drove back into heavy smoke and emerged with his clothing burnt off and severe burns to his body. He later died from his injuries. Three employees who responded to the fire were also exposed to a serious risk of death or injury.
Critically, two separate fires had occurred at the same workplace in November 2016 during similar mowing operations. Despite those earlier incidents, the defendant kept no records, conducted no risk assessment, updated no emergency plan, and held no meetings with workers about fire risk. SafeWork NSW prosecuted the defendant for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011 (NSW).
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking (PCBU), failed to comply with its primary duty of care under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to s 32 of that Act.
- The appropriate penalty, having regard to the objective seriousness of the offence, general and specific deterrence, remorse and contrition, co-operation with investigators, post-incident remediation, and the utilitarian value of the guilty plea.
Decision
The defendant pleaded guilty on 22 July 2020. The court proceeded to sentencing and assessed the objective seriousness of the offence. The defendant had direct prior notice of the fire risk from the two November 2016 fires, yet took none of the steps that might have been expected of a reasonably diligent PCBU, such as recording the incidents, reassessing risk, or updating the emergency plan. That failure was central to the court's assessment of culpability.
The court considered the defendant's subjective circumstances carefully. The defendant co-operated fully with SafeWork's investigation, expressed genuine remorse through a board-level letter and affidavit from its National Health and Safety Manager, and took meaningful post-incident steps, including a directive prohibiting workers from attempting to fight fires. The defendant also supported the deceased contractor's family and made a donation to the medical research foundation at the hospital where he was treated.
The court set the appropriate fine at $400,000 before applying a 25% discount for the early guilty plea, reflecting the utilitarian value of that plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court accepted that the defendant's rehabilitation prospects were good, given the concrete changes to its work practices following the incident.
Orders Made
- The defendant is convicted.
- A fine of $400,000 was assessed as appropriate, reduced by 25% for the early guilty plea, resulting in a fine of $300,000.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- The defendant is to pay the prosecutor's costs, agreed in the sum of $40,000.
Key Takeaways
- A PCBU's failure to record, investigate, or respond to prior workplace safety incidents can significantly aggravate culpability when a later, more serious incident occurs in substantially similar circumstances.
- The District Court accepted that a 25% discount on the penalty was appropriate where a guilty plea was entered reasonably early, consistent with the utilitarian value recognised under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Post-incident remediation, including concrete operational changes such as a prohibition on workers fighting fires, was treated as evidence of good rehabilitation prospects under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Genuine remorse, co-operation with investigators, community contributions, and support provided to the deceased worker's family were all recognised as relevant mitigating factors in the sentencing exercise.
- Under s 122(2) of the Fines Act 1996, 50% of the fine imposed in a work health and safety prosecution is directed to the prosecutor, a distribution mechanism that practitioners in this area should be aware of when advising on expected financial consequences of a conviction.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Work Health and Safety Regulations 2011 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Limited & Anor (No 3) [2005] NSWIRComm 61
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Miria [2009] NSWCCA 68
- R v Wilkinson (No 5) [2009] NSWSC 432
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700