Citation: SafeWork NSW v Douglas Box Pty Limited [2020] NSWDC 682
Court: District Court of New South Wales
Date: 6 November 2020
Judge: Strathdee DCJ
Background
The defendant was a company that had operated a wooden products manufacturing business at Emu Plains for approximately 31 years. It engaged workers through a labour hire firm to carry out general duties including operating forklifts. Two of those workers had been loading a storage racking system at the rear of the site when a horizontal pallet beam became disconnected and a metal crate filled with wooden offcuts fell, striking one worker and landing on top of him.
The injured worker suffered two fractured ribs, fractures to his L4 and L5 vertebrae, bleeding from a kidney, and multiple pelvic fractures. He was hospitalised for six days. His victim impact statement described permanent physical injury, chronic pain, ongoing treatment from multiple specialists, and significant damage to his personal relationships and his secondary career in the music industry.
SafeWork NSW prosecuted the defendant for failing to comply with the health and safety duty imposed on a person conducting a business or undertaking (PCBU) under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury. The defendant pleaded guilty on 10 August 2020.
Legal Issues
- What was the appropriate penalty, having regard to the objective seriousness of the offence and the purposes of sentencing?
- What weight should be given to mitigating factors, including the early guilty plea, the defendant's lack of prior convictions, remorse, and co-operation with the investigation?
- What aggravating factors were relevant, particularly the severity of the harm suffered by the injured worker?
- What discount applied to the fine as a result of the guilty plea?
Decision
The court identified several failures by the defendant that exposed workers to a foreseeable risk of death or serious injury. Prior to the incident, the defendant had no safe work procedure for the storage racking system, no tag-out or reporting system for when damage occurred, no training or instruction for workers on how to respond to damage, and no documented maintenance or inspection records. Publicly available guidance, including Australian Standard AS4084-2012 and a SafeWork NSW fact sheet, set out clear obligations around racking inspection, maintenance, and worker training that the defendant had not followed.
The court considered the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including adequate punishment, general and specific deterrence, and recognition of harm to the victim. The maximum available penalty was $1,500,000. The court assessed the appropriate fine before discount at $100,000, reflecting the objective seriousness of the offence and the significant ongoing harm to the injured worker, which the court identified as an aggravating factor.
Several mitigating factors reduced the overall penalty. The defendant had traded for 31 years without any prior WHS convictions, which supported a finding of good character. The director's remorse was accepted as genuine, noting that he had visited the injured worker in hospital daily and maintained contact after discharge. The defendant had co-operated with SafeWork NSW's investigation and with the prosecutor. By the time of sentencing, the business had ceased trading, which the court also took into account.
The court applied the conventional 25% discount for the early guilty plea, reducing the fine from $100,000 to $75,000. The court also ordered the defendant to pay the prosecutor's agreed costs of $40,000. Under s 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $75,000 was imposed (reflecting the pre-discount figure of $100,000 reduced by 25% for the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was to be paid to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $40,000.
Key Takeaways
- The District Court confirmed that a PCBU's failure to implement basic racking safety systems, including inspection records, damage reporting procedures, and worker training, can constitute a category 1 or category 2 WHS offence exposing the business to significant financial penalties.
- An early guilty plea attracted the conventional 25% utilitarian discount from the pre-discount fine, reducing a $100,000 fine to $75,000, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Publicly available guidance materials, including Australian Standards and SafeWork NSW fact sheets, were treated as relevant benchmarks against which the defendant's systems of work were measured.
- Genuine remorse, demonstrated through post-incident conduct such as the director's hospital visits and ongoing contact with the injured worker, was accepted as a mitigating factor alongside co-operation with the investigation and an absence of prior WHS convictions.
- Where the business had ceased trading by the time of sentencing, that fact was taken into account, but it did not eliminate the court's obligation to impose a penalty that reflected adequate punishment and the purposes of general deterrence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 7, 19(1), 19(3), 32
- Work Health and Safety Regulations 2011 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122(2)
- Australian Standard AS4084-2012 (Rack Shelving)
Cases:
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW (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 [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 423
- 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