Citation: SafeWork NSW v All Cranes 4 Hire Pty Ltd [2020] NSWDC 738
Court: District Court of New South Wales
Date: 4 December 2020
Judge: Russell SC DCJ
Background
All Cranes 4 Hire Pty Ltd, operating as "Top Gun Cranes", was a person conducting a business or undertaking (PCBU) that provided crane services. It was engaged as a subcontractor by the principal contractor, Arise Construction Pty Ltd, on a 58-townhouse development at Kellyville, New South Wales. Another subcontractor, HD Projects Pty Ltd, was separately engaged to install AFS Logicwall Wall Panels, and Erectus Scaffolding Pty Ltd was engaged to supply and install scaffolding.
On 15 December 2017, a worker from HD Projects attached a pallet hook to a load of wall panels incorrectly, inserting the hook's tynes into the second panel from the bottom rather than beneath the pack, and without securing the load with straps. When the crane operator (All Cranes' sole director) lifted the load, a 76 kg bottom panel detached and fell, striking two Erectus scaffolding labourers who were standing below. One suffered shoulder and knee injuries; the other was not significantly injured.
All Cranes pleaded guilty to failing to comply with its work health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (NSW), thereby exposing the two workers to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- What was the objective seriousness of All Cranes' failure to comply with its WHS duty?
- What weight should be given to mitigating and aggravating factors in sentencing?
- What reduction in penalty was appropriate to reflect the guilty plea?
- What financial penalty was proportionate, having regard to All Cranes' capacity to pay?
- What costs order was appropriate?
Decision
The court assessed the objective seriousness of the offending by reference to the failures that contributed to the incident. All Cranes had a Safe Work Method Statement (SWMS) that addressed working near crane lifts but did not implement it on the day. It failed to establish an exclusion zone around the crane's operating area and failed to provide the Erectus workers with any instruction, training, or information about safely working in proximity to an active crane. These omissions left workers exposed to a foreseeable and serious risk.
The court identified several aggravating features: the risk of death or serious injury was foreseeable; exclusion zones are a basic, well-known control measure; relevant guidance, including an applicable Australian Standard and a SafeWork NSW Code of Practice, was publicly available; and the workers who were struck had no reason to be specifically in that location at that time, meaning the risk could have been addressed by a straightforward physical barrier. The court also noted that the pallet hook came with its own Safe Work Method Statement, which was not followed.
In mitigation, the court took into account All Cranes' cooperation with the investigation, its lack of prior convictions, and its guilty plea. The company also retained and engaged an additional dogman after the incident, indicating some remediation. Evidence was given by the sole director of a downturn in revenue due to COVID-19, though no financial statements were produced and no submission was made that All Cranes would have difficulty paying a fine.
The court determined the appropriate fine before the guilty plea discount was $200,000. Consistent with s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% reduction was applied to reflect the plea, resulting in a final fine of $150,000. Under s 122(2) of the Fines Act 1996 (NSW), 50% of that fine was directed to be paid to the prosecutor, SafeWork NSW. Prosecution costs of $32,500 were also ordered.
Orders Made
- All Cranes 4 Hire Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- All Cranes 4 Hire Pty Ltd ordered to pay a fine of $150,000 (reduced from $200,000 by 25% for the guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- All Cranes 4 Hire Pty Ltd ordered to pay the prosecutor's agreed costs of $32,500.
Key Takeaways
- A PCBU's obligation to manage risks to workers of other contractors extends to taking basic precautions such as establishing exclusion zones around crane operations, even where another subcontractor controls the load-attachment process.
- Failing to implement an existing Safe Work Method Statement was treated as a significant aggravating feature, since the company already had a risk-management tool available and chose not to apply it.
- Under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% guilty plea discount applied to reduce the base fine from $200,000 to $150,000, consistent with the approach to plea discounts in WHS prosecutions.
- The District Court noted that while COVID-19 financial impacts were raised in evidence, the absence of supporting financial statements and the absence of any submission that payment would be difficult limited the weight that could be given to capacity-to-pay arguments.
- Publicly available guidance, including Australian Standards and SafeWork NSW Codes of Practice, was treated as relevant to determining what a duty holder should have known and done, reinforcing that ignorance of such material does not reduce objective culpability.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(2), 32
- Work Health and Safety Regulation 2017 (NSW), ss 34, 35, 36, 37, 38
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- 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
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432