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District Court 21 May 2021

SafeWork NSW v Concrite Pty Ltd

[2021] NSWDC 191

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

Citation: SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191
Court: District Court of New South Wales
Date: 21 May 2021
Judge: Strathdee DCJ

Background

The defendant, a concrete production and supply company operating as a subsidiary of Boral Limited, managed a busy site in Alexandria, NSW. The site included a fuel station used by up to 60 vehicles per hour. Fuel deliveries were made under a supply arrangement with a separate petroleum company, whose drivers attended the site regularly.

On 20 September 2017, a tanker driver employed by the fuel delivery company arrived at the site to deliver diesel. Due to a series of concurrent truck manoeuvres in the rear yard, and the absence of effective pedestrian controls, the tanker driver walked into the path of a reversing concrete mixing truck. He was struck and dragged approximately 20 metres, sustaining serious injuries. He passed away in hospital on 22 September 2019.

SafeWork NSW prosecuted the defendant for failing to comply with its primary duty of care under the Work Health and Safety Act 2011 (NSW), which exposed workers to a risk of death or serious injury. The defendant pleaded guilty on 23 November 2020.

  • Whether the defendant breached its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of workers at the site
  • What level of objective seriousness should be attributed to the offence
  • What aggravating and mitigating factors applied to the sentencing exercise
  • What discount, if any, should apply for the defendant's early guilty plea and demonstrated remorse
  • What fine amount was appropriate having regard to general and specific deterrence, the defendant's capacity to pay, and the totality of the sentence

Decision

The court found that the defendant's failures were multiple and systemic. The site's traffic management plan did not designate pedestrian walking zones or exclusion zones. Pedestrian walkways were narrow, poorly marked, and sometimes obstructed. The defendant had not reviewed the fuel delivery company's Safe Operating Procedure or established a system ensuring effective induction of delivery drivers. The tanker driver had attended the site approximately 56 times without ever receiving a site induction.

Strathdee DCJ assessed the objective seriousness of the offence as sitting within the mid-range. The risk of pedestrian and vehicle interaction at a high-traffic industrial site was foreseeable, and the measures required to address that risk were reasonably available and not unduly burdensome. The court noted that the defendant had failed to consult, co-operate, and co-ordinate with other duty holders, including the fuel supplier's entities.

On specific deterrence, the court found that the defendant had genuinely reflected on the incident, completely redeveloped its safety systems, and demonstrated strong prospects of rehabilitation. The need for specific deterrence was therefore assessed as minimal. General deterrence remained a relevant consideration but was not treated as the dominant factor.

The court identified the emotional harm to the deceased's family, particularly his daughter, as an aggravating factor. Mitigating factors included the defendant's genuine remorse (supported by affidavit evidence from a company officer), the limited relevance of a 1997 prior conviction given the passage of time, and the early guilty plea. A discount of 25% was applied for the utilitarian value of the plea, reducing the appropriate fine of $600,000 to $450,000.

Orders Made

  • The defendant is convicted.
  • A fine of $450,000 is imposed (reflecting a 25% reduction from the assessed fine of $600,000 for the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs in the agreed sum of $43,413.26.

Key Takeaways

  • The District Court confirmed that a failure to establish effective pedestrian separation controls in a high-traffic industrial yard, combined with the absence of a meaningful induction process for regular delivery contractors, can constitute a breach of the primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW).
  • Objective seriousness was assessed at the mid-range where the hazard was foreseeable and practicable controls existed but were not implemented, even though the defendant did not create the precise circumstances of the incident intentionally.
  • A 25% discount for an early guilty plea remained available to a corporate defendant in work health and safety proceedings where the utilitarian value of the plea was clear.
  • Demonstrated post-incident remediation and genuine corporate remorse, supported by evidence rather than bare assertion, were treated as substantive mitigating factors capable of minimising the weight given to specific deterrence.
  • Under the sentencing framework applied, the emotional harm suffered by the deceased worker's family constituted a recognised aggravating factor, even where the death occurred approximately two years after the incident giving rise to the charge.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e), 21A(3)(i), 22
- Fines Act 1996 (NSW), s 122(2)

Cases
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Cage [2006] NSWCCA 304
- R v MA [2004] NSWCCA 92
- R v Miria [2009] NSWCCA 68
- R v MMK [2006] NSWCCA 272
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Menzies Property Services Pty Ltd (2004) 136 IR 449
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151