Citation: SafeWork NSW v Byford Equipment Pty Limited [2021] NSWDC 168
Court: District Court of New South Wales
Date: 12 May 2021
Judge: Scotting DCJ
Background
Byford Equipment Pty Limited operated a business in Moama, NSW, designing and fabricating stainless steel tankers. The company employed approximately 120 workers and was the primary defendant in a prosecution brought by SafeWork NSW under the Work Health and Safety Act 2011 (the Act).
On 13 February 2018, a young apprentice auto-electrician was directed by his supervisor to clean the inside of a partially constructed tanker. He entered a compartment of the tanker without an atmospheric test, without a confined space entry permit, and without the required mechanical ventilation, because the manifold pipework connecting the ventilation blower to that compartment had not yet been installed. He used a Wax and Grease Remover product inside the enclosed space while wearing only a half-face respirator mask and safety glasses.
The worker lost consciousness due to solvent fume exposure and was found unresponsive inside the compartment by a co-worker on the roof of the tanker. He was hospitalised at Echuca Hospital, observed for approximately 30 minutes, and returned to work after three days. The company appeared for sentence having pleaded guilty to failing to comply with its primary health and safety duty under s 19(1) of the Act, thereby exposing a worker to a risk of death or serious injury.
Legal Issues
- What was the appropriate fine for a category 2 offence under s 32 of the Work Health and Safety Act 2011, with a maximum penalty of $1.5 million?
- How should the court assess the objective seriousness of the offending?
- What weight should be given to mitigating factors including the guilty plea, cooperation with investigators, absence of prior convictions, remorse, and remediation steps taken after the incident?
- What discount applied to the penalty in light of the guilty plea?
Decision
Scotting DCJ assessed the objective seriousness of the offending as falling below the midrange. The worker faced a real risk of death or serious injury from solvent fume exposure in an unventilated confined space. However, the actual harm suffered, while serious, was at the lower end: the worker lost consciousness but recovered quickly and returned to work within days. The court also noted that the worker himself had contributed to the circumstances by not informing his supervisor that the ventilation system was unavailable and by proceeding alone into the compartment.
The court found several significant failures by the company. The Confined Space Entry Permit process was not routinely enforced on site. The worker had never been shown the Standard Operating Procedure for confined space entry, had never signed a confined space entry permit, and had not received confined space training. The Safe Work Method Statement in place did not address all relevant hazards. These failures existed despite the company having reasonably detailed safety documentation.
On mitigation, the court gave credit for the company's swift and comprehensive remediation after the incident, which included structural changes to the production process, new safety signage and barriers, additional training, and the installation of gas detectors. The court accepted that the director, Mr Byford, exercised genuine day-to-day control and had shown real remorse. The company had no prior convictions and had made significant contributions to regional employment and community organisations.
A 25% discount was applied to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski. The court arrived at a base fine of $40,000, reduced to $30,000 after the plea discount. The company was also ordered to pay the agreed prosecution costs of $35,000.
Orders Made
- Byford Equipment Pty Limited convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- Fine of $30,000 imposed (base fine of $40,000 reduced by 25% for guilty plea).
- Prosecutor's costs of $35,000 ordered to be paid by the offender.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor.
Key Takeaways
- The District Court treated the existence of safety documentation as insufficient where that documentation was not routinely enforced and had never been communicated to the affected worker.
- A conviction under s 32 of the Work Health and Safety Act 2011 for a category 2 offence carries a maximum fine of $1.5 million; the court's assessment of objective seriousness will be heavily influenced by the nature of the risk, the degree of departure from required standards, and the actual harm caused.
- Contribution by the injured worker to the circumstances of the incident was treated as a factor bearing on objective seriousness, though it did not absolve the employer of its primary duty.
- Swift, comprehensive post-incident remediation, combined with genuine remorse and cooperation with SafeWork investigators, carried real mitigating weight in the sentencing exercise.
- A 25% guilty plea discount was applied, reflecting both the utilitarian value of the plea and the court's acceptance that it demonstrated contrition.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Longworth v R [2017] NSWCCA 119
- Ollis v R [2011] NSWCCA 155
- Perrin v R [2006] NSWCCA 64
- R v Borkowski (2009) 195 A Crim R 1
- R v Tadrosse (2006) NSWLR 740
- R v Thomson & Houlton (2000) 49 NSWLR 383