Citation: SafeWork NSW v Better Truck Repairs Pty Limited [2021] NSWDC 37
Court: District Court of New South Wales
Date: 3 March 2021
Judge: Russell SC DCJ
Background
Better Truck Repairs Pty Limited (BTR) operated a heavy vehicle service and repair workshop in South Windsor, NSW. Although the workers on site were formally employed through a labour hire company, BTR recruited, inducted, trained and directed them, provided uniforms and personal protective equipment, and was treated as the effective controller of the workplace.
On 9 February 2018, a diesel mechanic who had worked for BTR for approximately one week was directed to remove the cutting edge of an excavator bucket. The bucket, estimated to weigh between one and 2.5 tonnes, had been left suspended from forklift tines rather than rested on the ground. While attempts were made to remove the bucket from the tines, the bucket slid off. The worker's foot came into contact with the front edge of the bucket, launching him into the air. He was thrown onto the concrete floor and suffered serious injury.
SafeWork NSW prosecuted BTR for failing to comply with its primary work health and safety duty under the Work Health and Safety Act 2011 (NSW). BTR pleaded guilty to the charge of exposing a worker to a risk of death or serious injury, contrary to section 32 of that Act.
Legal Issues
- Whether BTR had breached its primary duty under section 19 of the Work Health and Safety Act 2011 (NSW) by failing to take reasonably practicable measures to eliminate or minimise the risk of workers being struck or crushed by an uncontrolled excavator bucket
- How the offence should be assessed for objective seriousness, and what weight to give mitigating and aggravating factors when determining penalty
- Whether BTR's financial capacity as a small business warranted a reduction in the fine imposed
- The appropriate quantum of penalty, including the discount available for an early guilty plea
Decision
Russell SC DCJ convicted BTR on the guilty plea. The identified risk was that workers could suffer serious injury or death as a result of being struck, crushed, or otherwise contacted by the excavator bucket during its uncontrolled movement. The failures included conducting maintenance on a bucket suspended from forklift tines, allowing workers without valid NSW forklift licences to operate a forklift, conducting no adequate risk assessment for the task, and having no Safe Work Method Statement or safe operating procedure relevant to the work being performed.
In assessing objective seriousness, the court considered that the risk of serious harm was obvious and well-known in the industry, and that straightforward and inexpensive control measures were available, such as resting the bucket on the ground using chocks, or using an appropriate crane or jib attachment. BTR had engaged an external WHS consultant and had existing health and safety systems, but those systems contained significant gaps in relation to this type of task.
On mitigating factors, the court accepted that BTR had no prior convictions, cooperated fully with the prosecution, and entered a plea of guilty at an early stage. The court also accepted that BTR was a small business with an annual turnover of approximately $2,000,000 making only a modest profit, and took its financial capacity into account under section 6 of the Fines Act 1996 (NSW). Consistent with the principle stated in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, the court recognised that a fine adequate for a large corporation might be disproportionately severe for a small business.
The court set an appropriate fine of $100,000 before applying a 25% reduction for the early guilty plea, arriving at a final penalty of $75,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor.
Orders Made
- BTR convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW)
- Fine of $75,000 imposed (reduced from $100,000 by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor (SafeWork NSW) pursuant to section 122(2) of the Fines Act 1996 (NSW)
- BTR to pay the prosecutor's agreed costs of $30,000
Key Takeaways
- A business that effectively controls a workplace, directs workers, and provides training and equipment can carry the primary WHS duty under section 19 of the Work Health and Safety Act 2011 (NSW) even where workers are formally employed through a labour hire arrangement.
- Under section 32 of the Work Health and Safety Act 2011 (NSW), the maximum penalty of $1,500,000 applies where a duty holder exposes a person to a risk of death or serious injury; the District Court assessed this offence at a level warranting a $100,000 fine before discounts, reflecting the availability of obvious and low-cost controls.
- Existing WHS systems and engagement of an external consultant are relevant mitigating factors, but will not substantially reduce culpability where those systems contain identifiable and material gaps relevant to the task in which the incident occurred.
- A 25% discount for an early guilty plea remained available to a corporate offender, consistent with section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Financial capacity is a relevant but not decisive consideration in fixing a WHS fine; the District Court applied the principle from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 that a fine appropriate for a large corporation may operate as an unduly crushing sanction on a small business.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 19, 32
- Work Health and Safety Regulation 2011 (NSW), cll 34–39, 81, 83, 218, 219, Sch 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432