Citation: SafeWork NSW v Crawfords Freightlines Pty Ltd [2021] NSWDC 442
Court: District Court of New South Wales
Date: 27 August 2021
Judge: Russell SC DCJ
Background
The defendant, a road freight company specialising in aluminium transport, employed a worker who had been transferred to its Alloy Department only three days before the incident. On 13 September 2018, that worker was directed to assist with loading aluminium billets into a shipping container. The task involved standing inside the container to hold cardboard in place while a forklift operator loaded adjacent billet bundles.
During the operation, a 2.3-tonne load of billets shifted on the forklift tines and fell, striking the worker and pinning him against the container wall. He suffered a fractured femur and a fractured right wrist, requiring two surgeries and a period of hospital rehabilitation. He was 30 years old at the time.
The company pleaded guilty to failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to s 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- The appropriate assessment of objective seriousness of the WHS offence
- What weight to give to mitigating and aggravating factors, including the early guilty plea and co-operation with investigators
- The defendant's capacity to pay a fine, and how the size of the business bears on specific and general deterrence
- The appropriate quantum of the fine, including the discount for the guilty plea
- The appropriate costs order
Decision
The court found that the risk was foreseeable and the means to address it were readily available. The company had existing safe operating procedures (SOPs) that expressly prohibited workers from remaining inside containers while forklift operations were underway. However, those SOPs did not specifically address the task of placing cardboard between billet loads, and critically, the worker had not been inducted or re-inducted into any procedure relevant to the Alloy Department's specific tasks before the incident occurred.
The court identified several failures: no safe work procedure for the cardboard-placement task existed; no relevant induction or training had been provided to the worker for this new role; and supervision was inadequate. These gaps were treated as significant in assessing the objective seriousness of the offence, though the court does not appear to have placed it at the highest end of the range.
On mitigating factors, the court accepted the guilty plea and co-operation with investigators. A 25% discount was applied to reflect the early plea, consistent with s 22 of the Crimes (Sentencing Procedure) Act 1999. The company co-operated promptly with SafeWork NSW and provided all requested documents. No submission was made about capacity to pay, so that consideration did not further reduce the penalty.
The court fixed the appropriate fine at $120,000 before the guilty plea discount, resulting in a final fine of $90,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor. The parties had agreed that the defendant would pay the prosecutor's costs.
Orders Made
- Crawfords Freightlines Pty Ltd convicted of the offence
- Fine of $90,000 imposed (reflecting a 25% reduction from a base fine of $120,000)
- 50% of the fine directed to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Crawfords Freightlines Pty Ltd to pay the prosecutor's costs
Key Takeaways
- A conviction under ss 19 and 32 of the Work Health and Safety Act 2011 (NSW) can arise where an employer's existing safe work procedures did not specifically address the precise task being performed, leaving gaps in induction, training, and supervision for workers newly assigned to that task.
- The District Court applied a 25% discount for an early guilty plea in a WHS prosecution, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999.
- Where an offender makes no submission about limited capacity to pay a fine, that consideration does not arise and will not independently reduce the penalty imposed.
- Under s 122(2) of the Fines Act 1996 (NSW), a court may direct that a portion of the fine be paid to the prosecuting authority; here, 50% was so directed.
- Transferring a worker to a new department without providing task-specific induction and training was treated as a material failure, even where general forklift and safety SOPs were already in place.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38
- 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
- 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