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District Court 13 February 2020

Safework NSW v Dongwha Timbers Pty Limited

[2020] NSWDC 9

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Safework NSW v Dongwha Timbers Pty Limited [2020] NSWDC 9
Court: District Court of New South Wales
Date: 13 February 2020
Judge: Russell SC DCJ

Background

Dongwha Timbers Pty Limited operated a timber sawmill and re-manufacturing facility at Bombala, New South Wales. As part of its production process, the company ran a satellite line plant that used a tilt hoist to separate timber boards from small wooden spacers called fillet sticks. The tilt hoist featured six heavy steel lift arms capable of moving through a 90-degree arc.

On 27 July 2016, a worker, Mr Olsen, was operating the satellite line infeed unit when a fillet stick became lodged under the lift arms of the tilt hoist. After attempting to dislodge it using the control panel, Mr Olsen stepped over the interlocked gate, entered the restricted access area, and used a long-handled shovel to free the jam. He did not isolate or lock out the machine before entering. When the fillet stick came free, the lift arms dropped suddenly due to slack in the drive chains, striking him in the lumbar region and pushing him to the ground.

Mr Olsen suffered a dislocated left hip and was unfit for his pre-injury duties for 16 to 20 weeks. Dongwha pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Olsen to a risk of death or serious injury, contrary to section 32 of that Act.

  • What was the appropriate fine, having regard to the objective seriousness of the offence and the maximum penalty of $1,500,000?
  • What weight should be given to mitigating factors, including the guilty plea, the company's prior good record, and its post-incident remediation?
  • Whether a conviction should be recorded, or whether the matter should be disposed of without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether an order under section 239 of the Work Health and Safety Act 2011 (NSW), adjourning the matter on the basis of a court-ordered WHS undertaking, was appropriate?
  • How costs should be allocated between the parties?

Decision

The court assessed the objective seriousness of the offence as moderate. While Dongwha had in place a formal induction program, risk assessments, and standard operating procedures including lockout procedures, those systems were inadequate in one critical respect: they did not identify the specific risk that the lift arms could fall when the fillet stick was dislodged due to slack in the drive chains. The existing procedures told workers to isolate and lock out machinery before entering the restricted area, but did not direct them to call a maintenance employee to deal with jams, and did not warn of the particular danger posed by slack chains.

The court identified several mitigating factors. Dongwha had no prior offending history under the Act, entered a guilty plea, cooperated fully with the investigation, expressed genuine remorse, implemented significant post-incident safety improvements, and had paid Mr Olsen's medical expenses and workers' compensation entitlements. These factors were weighed against the seriousness of the failure to perceive and adequately address a foreseeable risk that ultimately caused serious injury.

Regarding the proposed section 10 order, the court declined to deal with the matter without recording a conviction. The offence was not trivial, there were no extenuating circumstances, and a non-conviction order would fail to reflect the objective seriousness of the breach and the principles of general and specific deterrence. The court also declined to make an order under section 239 of the Act for a court-ordered WHS undertaking directed at alerting competitor businesses to the risk, finding no evidence of utility in such an order and noting the absence of any evidence that Dongwha had already taken steps in that direction.

The court fixed the appropriate fine at $120,000, then reduced it by 25 percent to reflect the guilty plea, arriving at a final penalty of $90,000.

Orders Made

  • Dongwha Timbers Pty Limited convicted of the offence.
  • Fine of $90,000 imposed (reduced from a base of $120,000 by 25% for the guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor, Safework NSW.
  • Dongwha Timbers Pty Limited ordered to pay the prosecutor's costs.

Key Takeaways

  • A guilty plea to a category 2 offence under the Work Health and Safety Act 2011 (NSW) attracted a 25% discount on the fine, reducing the base penalty from $120,000 to $90,000, against a maximum of $1,500,000.
  • Having written safe operating procedures in place does not discharge an employer's work health and safety duty where those procedures fail to identify a specific, foreseeable risk inherent in the task workers are performing.
  • Declining to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was inappropriate here: the court found no extenuating circumstances, and an order without conviction would have failed to give proper weight to objective seriousness and deterrence.
  • Under section 122(2) of the Fines Act 1996, the court can direct that a portion of any fine be paid to the prosecuting authority, and did so here, allocating 50% to Safework NSW.
  • Where no evidence supported the utility of a court-ordered WHS undertaking under section 239 of the Work Health and Safety Act 2011 (NSW), the court declined to exercise that power.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 239
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Fines Act 1996 (NSW), s 122(2)

Cases
- Safework NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66
- 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
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432