Citation: SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441
Court: District Court of New South Wales
Date: 27 August 2021
Judge: Russell SC DCJ
Background
Plasser Australia Pty Ltd is a subsidiary of an international group and operates a facility at St Marys in Western Sydney, where it manufactures, maintains, and repairs railway machinery. On 13 March 2019, workers at the site used oxy-propane cutting equipment to "de-head" (remove the top from) a 200-litre waste solvent drum. The top joint of the drum failed, triggering an explosion that detached the drum lid and caused it to strike one worker in the right leg.
SafeWork NSW prosecuted Plasser under the Work Health and Safety Act 2011 (NSW). The charge was that Plasser, as a person with a work health and safety duty under section 19, failed to comply with that duty and thereby exposed four workers to a risk of death or serious injury, contrary to section 32. Plasser pleaded guilty.
The sentencing proceeding required the District Court to determine the appropriate financial penalty from a maximum of $1,500,000, taking into account objective seriousness, mitigating and aggravating factors, the guilty plea, and the company's capacity to pay.
Legal Issues
- What was the objective seriousness of Plasser's failure to discharge its work health and safety duty?
- What mitigating and aggravating factors applied under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- What discount, if any, was appropriate for the early guilty plea under section 22 of the same Act?
- What fine was proportionate given the seriousness of the offence, the need for general and specific deterrence, and the company's capacity to pay under section 6 of the Fines Act 1996 (NSW)?
Decision
The court found that Plasser failed to take multiple reasonably practicable measures to eliminate or minimise the risk of explosion during hot work. Those failures included not conducting a proper risk assessment for the de-heading of waste solvent drums, not implementing documented safe work procedures or a hot work permit system consistent with relevant Australian Standards, not providing adequate training or supervision to workers assigned to the task, and not supplying appropriate non-sparking equipment. The workers involved were untrained, and the risk was foreseeable.
On objective seriousness, the court treated the offending as sitting within the moderate range, noting the gap between actual harm and the potential for catastrophic injury or death inherent in the conduct. The injury to one worker and the exposure of three others were central to the assessment.
In mitigation, the court accepted Plasser's early guilty plea, its co-operation with the prosecutor, and its remediation efforts following the incident. There was no evidence raising issues about capacity to pay, so the court proceeded to impose a fine without reduction on that basis.
The court determined the appropriate base fine was $240,000 and applied a 25% discount for the early guilty plea, resulting in a final fine of $180,000. The court also ordered that 50% of that fine be paid to the prosecutor, as permitted under section 122(2) of the Fines Act 1996.
Orders Made
- Plasser Australia Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- Plasser Australia Pty Ltd ordered to pay a fine of $180,000 (reduced by 25% from a base of $240,000 to reflect the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Plasser Australia Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- A failure to conduct a proper risk assessment before undertaking hot work on waste solvent drums, combined with the absence of documented safe work procedures, a hot work permit system, adequate training, and appropriate equipment, constituted a breach of the primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW).
- Under section 22 of the Crimes (Sentencing Procedure) Act 1999, an early guilty plea attracted a 25% discount from the base penalty, consistent with the requirement that courts take into account when the plea was entered and the circumstances in which the intention to plead was indicated.
- Capacity to pay is a relevant but not decisive consideration in WHS penalty proceedings: a substantial fine may remain warranted even where financial capacity is limited, given the seriousness of the offence and the need for general deterrence. Here, no submission on capacity was made and the issue did not arise.
- The District Court applied the principle from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 that specific deterrence must be calibrated to the size and scope of the offending organisation, recognising that a fine which would cripple a small business may have minimal impact on a larger corporation.
- Plasser had previously appeared before the NSW Industrial Relations Commission in relation to a similar WHS matter in 2009, a factor the court was entitled to consider in assessing specific deterrence and the weight to be given to prior compliance history.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465