Citation: SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338
Court: District Court of NSW
Date: 23 July 2021
Judge: Strathdee DCJ
Background
The defendant, an industrial plant and equipment rental company operating from a site in St Marys, employed a service mechanic whose duties included pre-hire inspections of equipment. On 28 May 2018, that worker was conducting a pre-hire inspection of a scissor lift capable of extending to 9.68 metres. The inspection required him to extend the scissor lift to its full capacity in an area beneath overhead power lines running at 8.9 metres above the ground.
During the inspection, the worker came into contact with the high voltage power lines. He suffered an electric shock and serious burns to his upper body, requiring multiple surgical procedures including skin grafts and extensive tissue debridement, and ongoing treatment and rehabilitation.
SafeWork NSW prosecuted the company for failing, as a person conducting a business or undertaking, to ensure so far as reasonably practicable the health and safety of workers while at work, contrary to sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW). The defendant entered a guilty plea on 22 February 2021, and the matter proceeded to sentencing.
Legal Issues
- What was the appropriate fine having regard to the objective seriousness of the offence?
- What weight should be given to aggravating factors, including the severity of the worker's injuries?
- What mitigating factors applied, including the defendant's prior record, cooperation, remorse, and the timing of the guilty plea?
- What discount, if any, applied to the fine by reason of the early guilty plea?
Decision
Strathdee DCJ approached the sentencing exercise by reference to the instinctive synthesis methodology, weighing all relevant factors together to arrive at an appropriate penalty rather than mechanically applying each factor in sequence. The primary consideration was the objective seriousness of the offence, with subjective factors playing a subsidiary role.
On objective seriousness, the court identified several inadequacies in the defendant's systems of work. There was no written procedure for conducting pre-hire inspections near overhead power lines and no site-specific safe work method statement for elevating work platforms. Although the site had a displayed map showing power line locations, a caution sign installed shortly before the incident, and signs on the scissor lift itself stating that a spotter was required near power lines, those measures were insufficient. The worker also lacked the required competency certification to operate the scissor lift in the relevant manner, though the court noted he was exempt from holding a high-risk work licence due to a legislative exemption for maintenance and servicing tasks.
The court identified a single aggravating factor: the very serious nature of the injuries sustained. Multiple mitigating factors reduced the appropriate penalty. These included the defendant's clean prior record (described as a significant mitigating factor given the inherently dangerous industry), cooperation with SafeWork's investigation, demonstrated remorse and contrition by the CEO, and good prospects of rehabilitation. The defendant's post-incident remediation, including barricading the area beneath the power lines, was also noted favourably. The court assessed the need for specific deterrence as minimal in the circumstances.
A 25% discount was applied to the fine for the utilitarian value of the early guilty plea. The court set a pre-discount fine of $200,000, which it reduced to $150,000. The maximum penalty for a corporate entity under section 32 of the Act is $1,500,000.
Orders Made
- The defendant is convicted.
- A fine of $150,000 is imposed (reflecting a pre-discount amount of $200,000, reduced by 25% for the early guilty plea).
- Pursuant to section 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 $42,000.
Key Takeaways
- Under the Work Health and Safety Act 2011 (NSW), a corporate defendant faces a maximum penalty of $1,500,000 for a Category 2 offence under section 32; the District Court here imposed a fine of $150,000, representing 10% of the maximum before the guilty plea discount.
- Objective seriousness is the primary sentencing consideration in WHS prosecutions, and subjective factors cannot be permitted to produce a penalty that fails to adequately reflect the gravity of the offence, as confirmed by reference to established Industrial Court authorities.
- A clean prior record in an inherently dangerous industry was treated as a significant mitigating factor, not merely a neutral circumstance, in the court's instinctive synthesis.
- The absence of written safe work procedures for a known and foreseeable hazard, such as operating elevating work platforms near overhead power lines, was central to the court's assessment of the defendant's failure.
- An early guilty plea attracted the maximum available utilitarian discount of 25%, consistent with section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B
Cases
- Markarian v The Queen (2005) 228 CLR 357
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- 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
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Various NSW Court of Criminal Appeal decisions on sentencing principle