Citation: SafeWork NSW v Ultra Refrigeration Pty Limited; SafeWork NSW v Romolo Prestia [2021] NSWDC 149
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Strathdee DCJ
Background
An air conditioning and refrigeration company was engaged to repair a faulty electrical system at a KFC restaurant in Woodbine, south-west Sydney. When the technician originally assigned to the job rang in sick on 25 October 2017, a service operations manager remotely allocated the work instead to two apprentices: a 21-year-old in his fourth year of apprenticeship and a 15-year-old in his first year.
The apprentices attended the site and collected replacement parts. Under pressure from the store manager not to cut power to the entire restaurant before its 10:00am opening, the older apprentice began work on the main switchboard without isolating the power. When he discovered the replacement circuit breaker was the wrong size and attempted to manipulate the busbar terminals to make it fit, the steel pliers he was using contacted live power and caused an arc flash explosion. He suffered burns requiring surgery and skin grafts, temporary blindness, and lasting injury to his hands and fingers. The younger apprentice, standing further back, escaped physical injury but suffered shock.
The corporate defendant, Ultra Refrigeration Pty Limited, was charged under s 19(1) of the Work Health and Safety Act 2011 (NSW) ("the Act") for failing to ensure the health and safety of its workers. The company's sole director, Mr Prestia, was charged separately under s 27(1) of the Act for failing to exercise due diligence to ensure the company met its duty. Both offences were prosecuted under s 32 of the Act, which applies where the failure exposes workers to a risk of death or serious injury. Both defendants pleaded guilty on 7 December 2020.
Legal Issues
- Whether the corporate defendant failed to comply with its primary duty of care under s 19(1) of the Act, exposing workers to a risk of death or serious injury contrary to s 32
- Whether the individual defendant, as an officer of the company, failed to exercise due diligence under s 27(1) of the Act to ensure the company complied with its s 19(1) duty
- How the court should assess the objective seriousness of the offences for the purposes of sentencing
- What weight to give to mitigating factors, including plea of guilty, remorse, remedial action, and prior good character
- Whether a 25% sentencing discount applied for the utility of the guilty plea
Decision
Strathdee DCJ convicted both defendants. The court found the objective seriousness of the offences to be in the moderate range. The risk of death or serious injury was foreseeable and plainly real: the work required a licensed electrician, the company had not employed one since July 2017, and the task was allocated to unqualified apprentices without adequate supervision or a safe work method statement. The court noted the company continued to direct electrical work after losing its only qualified electrician, relying on an unqualified service manager to allocate jobs and a former employee for informal "mentoring" by phone.
The court identified several significant failures. No system existed to prevent unqualified apprentices from being assigned work beyond their competence. The younger apprentice's presence was particularly concerning: he was 15 years old, in his first year of training, and entirely without the qualifications needed to supervise him. The incident occurred in part because the older apprentice proceeded without isolating the power at the store manager's request, reflecting a broader failure by the company to ensure workers had clear authority and confidence to enforce safe work practices.
In mitigation, the court accepted that both defendants expressed genuine remorse, cooperated with the prosecutor, and had taken substantial remedial steps after the incident. These included overhauling safety systems, updating safe work method statements, and introducing supervision protocols. The court also accepted evidence of prior good character, charitable activity, and a low risk of reoffending. The prosecutor conceded a full 25% discount was appropriate, given the pleas were entered promptly after substantially amended summonses were filed.
Orders Made
- Both defendants convicted
- Ultra Refrigeration Pty Limited fined $200,000 (before discount), reduced by 25% to $150,000
- Romolo Prestia fined $20,000 (before discount), reduced by 25% to $15,000
- 50% of each fine to be paid to the prosecutor (SafeWork NSW) pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Both defendants to pay the prosecutor's agreed costs of $55,000
Key Takeaways
- The District Court placed the offences in the moderate range of objective seriousness, reflecting that the risk was foreseeable and real, even though it arose in part from the older apprentice's decision to proceed without isolating the power.
- Continuing to direct electrical work after losing the company's only licensed electrician, without adequate alternative supervision arrangements, contributed materially to the court's assessment of culpability for both defendants.
- A 25% guilty plea discount was applied in full because the pleas, although entered after amended summonses were filed, were made promptly in the circumstances and the prosecutor conceded their utilitarian value.
- Remedial action taken after an incident can carry significant mitigating weight in WHS sentencing, particularly where it is extensive, genuine, and demonstrates insight into the failures that caused the harm.
- Under s 27(1) of the Act, an officer's personal duty to exercise due diligence is distinct from the company's primary duty: the sole director here was convicted and fined separately, reflecting his individual failure to ensure adequate supervision, qualifications, and safety resources within the company.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122
- Home Building Act 1989 (NSW), s 14 and sch 1 cl 1
- Home Building Regulation 2014 (NSW)
Cases
- Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35
- Bulga Underground Operations v Nash (2016) NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Kirk v Industrial Commission of New South Wales (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) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Limited (2017) 93 NSWLR 338
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v McNaughton (2006) 66 NSWLR 566
- R v Miria [2009] NSWCCA 68
- R v Thomson (2000) 49 NSWLR 383
- 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
- Attorney General of NSW v Tho Services Limited (in liquidation) [2016] NSWCCA 221