Citation: SafeWork NSW v ABC Tissue Products Pty Ltd [2021] NSWDC 552
Court: District Court of New South Wales
Date: 15 October 2021
Judge: Strathdee DCJ
Background
A tissue and paper products manufacturer employed approximately 375 workers and operated a paper mill at Wetherill Park, NSW. On 10 January 2019, two forklift drivers were working at the site and one of them used a forklift to lift his colleague to the top of a stack of pulp bales, roughly 3.1 metres high, to remove a tarpaulin. As the worker stepped backwards while pulling on a tarpaulin cord, he lost his balance and fell to the concrete below.
The worker sustained severe injuries, including spinal fractures causing leg paralysis and a traumatic brain injury. He spent 13 weeks in hospital and has been unable to walk or return to work since.
SafeWork NSW prosecuted the manufacturer for failing to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), an offence under s 32 of that Act. The company entered a guilty plea on 2 August 2021, and the proceedings before Strathdee DCJ concerned the appropriate sentence.
Legal Issues
- What was the objective seriousness of the offence, having regard to the gravity and foreseeability of the risk and the practicability of remedial measures?
- What mitigating and aggravating factors were relevant to the sentence?
- What discount, if any, should be applied for the early guilty plea?
- What was the appropriate fine, given the maximum penalty of $1,500,000 for a corporate offender under s 32 of the Act?
Decision
Strathdee DCJ assessed the objective seriousness of the offence by reference to the degree of the defendant's failure to ensure worker safety so far as was reasonably practicable. The court found that the risk of a fall from height was obvious and foreseeable. The defendant had a Safe Work Method Statement (SWMS) in place that identified this exact risk, required workers to remain 1.8 metres from the edge of the stack, and mandated use of a platform ladder to access the top of bales. Despite these written controls, supervision of how the task was actually performed was absent, and the platform ladder was not in the immediate work area at the time of the incident.
The court noted that the failure was serious: a specific, documented procedure existed, yet its requirements were not enforced or monitored in practice. The defendant's warehouse supervisor had never observed how workers carried out the tarpaulin task. Remedial measures that were implemented after the incident, including forklift-mounted workboxes and tarp spreaders allowing the work to be done from the ground, were inexpensive and straightforward, underscoring that more effective controls were readily available.
In mitigation, the court accepted the defendant's early guilty plea, its demonstrated remorse and contrition, its support for the injured worker since the incident, its absence of prior convictions at the time of the offence, its significant charitable contributions to the community, its enhanced safety department following the incident, and its reasonable prospects of rehabilitation. The court also had regard to the need for general and specific deterrence in imposing a penalty under the Act, consistent with the statute's objective of giving workers the highest level of protection against harm.
Having conducted the instinctive synthesis required by sentencing principles, the court set a pre-discount fine of $600,000, then applied a 25% discount for the early guilty plea, arriving at a final fine of $450,000.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $450,000 was imposed (reflecting a pre-discount figure of $600,000, reduced by 25% 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 (SafeWork NSW).
- The defendant is to pay the prosecutor's costs in the agreed sum of $25,000, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- The existence of a documented safe work method statement does not, of itself, discharge a duty holder's obligations under s 19(1) of the Work Health and Safety Act 2011 (NSW). The District Court found that a failure to supervise or audit compliance with that statement constituted a significant gap in the defendant's system of work.
- Where remedial controls are inexpensive and readily available, that factor heightens the objective seriousness of an offence, because the practicability of eliminating or minimising the risk weighs against the duty holder.
- A 25% sentencing discount is available for a guilty plea entered at the earliest opportunity, in accordance with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383 and s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Post-incident remediation, genuine remorse, support for an injured worker, community contributions, and enhanced safety systems were all accepted as mitigating factors, though these factors play a subsidiary role to the objective seriousness of the offence.
- Under s 122(2) of the Fines Act 1996 (NSW), half of the fine imposed in a WHS prosecution is directed to the prosecuting regulator.
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:
- 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
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v ABC Tissue Products Pty Ltd [2020] NSWDC 640
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531