Citation: Safework NSW v Hydromet Corporation Pty Limited; Safework NSW v Jeremy Perera [2020] NSWDC 82
Court: District Court of New South Wales
Date: 3 April 2020
Judge(s): Russell SC DCJ
Background
The corporate offender operated a battery recycling and chemical waste processing facility at Unanderra, New South Wales, employing approximately 65 people across three sites. The business used large quantities of highly concentrated sulphuric acid (98% grade) in its water treatment process, connecting the acid supply to processing tanks via flexible hoses. The individual offender was a chemical engineer and director responsible for the facility's day-to-day operations.
On 18 March 2017, two workers attempted to replace a ruptured hose in the water treatment plant. Neither had performed this task before. Critically, neither worker was told that the hose contained pressurised 98% sulphuric acid: one believed it was empty, the other thought it contained lime. When one worker released the hose fittings, both were sprayed with acid under pressure. Despite four emergency showers located nearby, the workers ran approximately 50 to 60 metres to the locker room without removing their contaminated clothing, compounding their injuries.
Both workers suffered serious burns. One worker's victim impact statement described weeks of hospitalisation, permanent scarring, chronic daily pain restricting arm movement, heightened sun sensitivity, and ongoing psychological trauma. SafeWork NSW prosecuted both the company and its director.
Legal Issues
- Whether the company, as a person conducting a business or undertaking (PCBU), had breached its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW) by failing to eliminate or minimise risks to workers handling hazardous chemicals, contrary to s 32 of the Act.
- Whether the director, as an officer of the company, had breached his personal duty under s 27(1) of the Act to exercise due diligence to ensure the company met its s 19 obligations, also contrary to s 32.
- What penalties were appropriate, having regard to the objective seriousness of the offences, any mitigating and aggravating factors, the pleas of guilty, and the purposes of sentencing including general and specific deterrence.
Decision
Both the company and the director pleaded guilty. Russell SC DCJ recorded convictions against both offenders on 24 March 2020 and proceeded to sentence.
The court assessed the offences as serious. The judgment identified a prolonged pattern of failures: inadequate risk assessment, no adequate training for workers performing unfamiliar tasks involving hazardous chemicals, absence of effective control measures, no clear emergency procedures, and deficient personal protective equipment. The court noted the workers ran past four emergency showers, a direct consequence of inadequate emergency training.
His Honour was sharply critical of what he characterised as a systemic regulatory failure, observing that a trained inspector walking through the premises would have identified multiple serious deficiencies within hours. The court noted that Hydromet had been left to effectively police itself despite holding a licence to handle extremely dangerous chemicals, and questioned why workers had to suffer serious injury before the failures were brought to official attention.
In determining the appropriate fines, the court set the base penalty for the company at $300,000 (against a maximum of $1,500,000) and for the director at $60,000 (against a maximum of $300,000). Both figures were then reduced by 25% to reflect the utilitarian value of the guilty pleas, producing final fines of $225,000 and $45,000 respectively.
Orders Made
Hydromet Corporation Pty Limited:
- Convicted and fined $225,000 (base fine of $300,000, reduced by 25% for guilty plea)
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's agreed costs of $44,972
Jeremy Perera:
- Convicted and fined $45,000 (base fine of $60,000, reduced by 25% for guilty plea)
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- Each party to bear its or his own costs
Key Takeaways
- A PCBU's WHS duty under s 19 of the Work Health and Safety Act 2011 extends to ensuring workers are properly informed of the specific hazards associated with the task they are performing, even where the worker is experienced in related work more generally.
- A director's personal liability under s 27(1) of the Act is engaged where that officer fails to exercise due diligence to ensure the company meets its own statutory obligations, and that failure exposes workers to a risk of death or serious injury.
- The District Court treated the absence of adequate training, risk assessment, control measures, and emergency procedures as compounding the objective seriousness of both offences, rather than treating any single failing in isolation.
- A 25% reduction in the base penalty was applied to reflect guilty pleas by both offenders, consistent with the sentencing approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Holding a regulatory licence to operate a hazardous chemical facility does not, of itself, indicate compliance with WHS obligations; the court noted that the deficiencies here were extensive and longstanding and would have been apparent on any competent inspection.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2011, cll 34, 35, 38, 43, 44, 363
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- 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
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432