Citation: SafeWork NSW v Silver Stone Hardware Pty Ltd [2021] NSWDC 551
Court: District Court of NSW
Date: 15 October 2021
Judge: Strathdee DCJ
Background
Silver Stone Hardware Pty Ltd was a small business engaged in supplying and delivering glass panels and associated hardware. On 20 March 2018, one of its delivery drivers, employed for only about a month, arrived at a residential site in Balmain with a load of toughened glass panels weighing between 21 and 70 kilograms each.
During unloading, two workers from another company took the first panel to the rear of the site. The delivery driver held the remaining panels on the truck by hand. The panels began to tilt toward him due to inadequate restraint, fell, and trapped him underneath. He suffered a fractured spine, a fractured lower leg, ligament damage, and multiple lacerations, requiring spinal surgery with rods and screws.
SafeWork NSW prosecuted the company under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty of care under s 19(1) of that Act, thereby exposing the worker to a risk of death or serious injury. The maximum penalty for a corporation under s 32 is $1,500,000. The company pleaded guilty on 26 April 2021.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the guilty plea, the defendant's post-incident remediation, its contrition, and its financial capacity?
- What fine, after applying a guilty plea discount, was appropriate to reflect both general and specific deterrence?
Decision
Strathdee DCJ assessed the objective seriousness of the offence as falling in the low-to-mid range. The risk of glass panels falling during unloading was foreseeable, and simple, low-cost measures were available to address it. However, the court accepted that the defendant had taken some steps prior to the incident, including on-the-job training and providing clamps and straps, even if those steps proved inadequate.
The court identified several mitigating factors: the early guilty plea, genuine remorse, post-incident remediation (including new safety procedures, equipment, and staff training), the absence of prior convictions, and a relatively limited financial capacity. The defendant was a small business with a sole director, and its operations had been materially affected by COVID-19 lockdowns in Western Sydney, though all staff had been retained.
The court emphasised that subjective factors cannot be permitted to produce a sentence that fails to adequately reflect the seriousness of the offence. The injury sustained by the worker was grave, and both general deterrence (sending a message to employers about WHS obligations) and specific deterrence remained relevant considerations. The court also noted that the defendant's liability for prosecution costs formed part of the overall penalty.
A pre-discount fine of $300,000 was set as appropriate, reflecting the objective seriousness of the offence and the need for deterrence while acknowledging the mitigating circumstances. A 25% discount was then applied for the early guilty plea, producing a final fine of $225,000.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $225,000 was imposed (reduced by 25% from $300,000 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.
- The defendant is to pay the prosecutor's agreed costs of $20,000, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A primary WHS duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) is non-delegable; an employer retains responsibility for ensuring worker safety even where the hazard arises during a routine task at a third party's premises.
- Objective seriousness is the primary sentencing factor in WHS prosecutions, and subjective mitigating matters play a subsidiary role that cannot produce a sentence failing to reflect the gravity of the breach.
- Post-incident remediation, genuine remorse, absence of prior convictions, and limited financial capacity (including COVID-19 impacts) are all capable of reducing a penalty, but only within limits set by the need for deterrence.
- Under the instinctive synthesis approach, no single factor is mechanically determinative; the court undertakes a global value judgment across all relevant circumstances.
- Prosecution costs payable by the defendant form part of the overall punishment and are a legitimate consideration when calibrating the monetary penalty, particularly where financial capacity is limited.
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
- Criminal Procedure Act 1986 (NSW), s 257B
- 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
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- 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
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Poletti Corporation [2019] NSWDC 491