Citation: SafeWork NSW v Williams Timber Pty Ltd [2020] NSWDC 777
Court: District Court of New South Wales
Date: 18 December 2020
Judge: Strathdee DCJ
Background
Williams Timber Pty Ltd operated a sawmill at Central Booker, NSW, employing around twelve workers including a sawmill hand of five years' experience. The company's core work involved cutting large hardwood logs using a Gibson Twin Edger Saw, a piece of equipment requiring frequent blade alignment adjustments, up to ten times per day.
On 13 October 2019, the employee was aligning the saw's packing mechanism while the blade was still running. Because the dedicated packing spanner was in use by another worker, he used an adjustable spanner instead. That spanner slipped off the nut, and his right hand contacted the running blade. He suffered partial amputation of his thumb and three fingers and sustained lasting physical and psychological harm.
SafeWork NSW prosecuted the company under the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary health and safety duty under section 19(1), thereby exposing the worker to a risk of death or serious injury, contrary to section 32 of that Act.
Legal Issues
- Whether the defendant's workplace conduct constituted a failure to comply with the primary duty under section 19(1) of the Work Health and Safety Act 2011 (NSW)
- The appropriate assessment of objective seriousness for the purpose of sentencing
- What weight to give to mitigating factors, including an early guilty plea and the defendant's financial position
- Whether prosecution costs should be ordered given the defendant's limited capacity to pay
Decision
The company pleaded guilty on 9 October 2020. The court proceeded to sentence, having regard to the Agreed Statement of Facts and affidavit evidence from the managing director and another witness. The maximum penalty for the offence under section 32 was $1,500,000.
The court found several compounding failures in the defendant's systems of work. The company had Safety Operating Procedures and a Risk Assessment document supplied by the manufacturer, but neither was provided to workers or enforced on site. The packing adjustment was routinely carried out while the blade was in motion, despite the company's own documented procedure stating the saw must be switched off for that task. Workers had raised concerns about the packing mechanism's proximity to the blade, and those concerns were not addressed.
In assessing objective seriousness, the court weighed the foreseeable risk of serious injury, the absence of adequate guarding or interlocked barriers, the lack of formal training or competency assessments, and the failure to enforce the existing safe work procedures. General and specific deterrence were regarded as important sentencing considerations given the severity of the worker's permanent injuries.
The court accepted that the defendant's financial future was uncertain, due to the impact of bushfires on timber supply and pending legislation affecting the company's resource base. The court treated this as a basis for leniency on costs, waiving the prosecution's costs entirely, and set the base fine at $200,000. A 25% discount was applied for the early guilty plea, producing a final penalty of $150,000.
Orders Made
- The defendant is convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $200,000 was assessed as appropriate, reduced by 25% for the early guilty plea.
- The defendant is ordered to pay a fine of $150,000.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- No order as to costs.
Key Takeaways
- The District Court confirmed that having safety documentation on paper is insufficient where those procedures are not distributed to workers, not enforced, and not reflected in actual practice on the ground.
- A base fine of $200,000 (reduced to $150,000 after a 25% early plea discount) was imposed for an offence carrying a maximum of $1,500,000, reflecting the court's assessment of objective seriousness against the mitigating factors present.
- Where a defendant demonstrates limited capacity to pay, the sentencing court may waive prosecution costs, treating that waiver as part of the overall punishment calculus alongside the monetary fine.
- Known hazards that workers raise directly with management, but that management fails to address, are a material factor in assessing the culpability of the defendant and the seriousness of the offence.
- Under the Work Health and Safety Act 2011 (NSW), general and specific deterrence carry significant weight at sentencing where the workplace incident has resulted in permanent, disabling injury to the affected worker.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), regs 34, 35, 36
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- 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
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
- 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
- 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