Citation: SafeWork NSW v Hubtex Australia Pty Ltd [2021] NSWDC 664
Court: District Court of NSW
Date: 8 December 2021
Judge: Scotting DCJ
Background
Hubtex Australia Pty Ltd operated a forklift importation, leasing and servicing business in Riverstone, NSW. In February 2017, the company took on a 16-year-old school leaver, Jai Blackman, on a 14-day work trial with a view to apprentice employment. His duties included cleaning, replacing panels, assisting with servicing, and changing batteries on forklifts.
On 2 March 2017, Mr Blackman was instructed to dismantle an old forklift gearbox. He independently decided to use a spray bottle of highly flammable brake cleaner to loosen the bolts. He then used a battery-operated rattle gun, despite being told not to by his supervisor. The gun produced a spark that ignited the brake cleaner, causing an explosion. Mr Blackman sustained burns to his face, ears, both hands and right arm, and subsequently required skin graft surgery at Concord Hospital.
The company reported the incident to SafeWork NSW only on 4 March 2017, more than a day after the event. SafeWork NSW prosecuted the company for two offences: failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011 (WHS Act), and failing to notify the regulator immediately after a notifiable incident.
Legal Issues
- Whether Hubtex Australia failed to comply with its primary duty of care under s 19(1) of the WHS Act, thereby exposing Mr Blackman to a risk of death or serious injury, constituting an offence under s 32.
- Whether Hubtex Australia failed to immediately notify SafeWork NSW of a notifiable incident, contrary to s 38 of the WHS Act.
- What sentence was appropriate, having regard to objective seriousness, aggravating and mitigating factors, and the utilitarian value of the guilty plea.
Decision
Hubtex Australia pleaded guilty to both charges. On the primary duty offence, the court assessed the objective seriousness as significant. The brake cleaner had been decanted into an unlabelled spray bottle, no safe work procedure existed for its use, and Mr Blackman had never been taken through the relevant Material Safety Data Sheet or Safe Work Method Statements during his induction. The offender had prior notice of his incorrect use of the brake cleaner and took no further steps to restrict access to it or alter his supervision.
The court noted the vulnerability of the injured worker as an aggravating factor. Mr Blackman was 16 years old with limited work experience, on a work trial, and had not been adequately trained or supervised. His disobedience in using the rattle gun was relevant to the causal analysis, but the court's approach was consistent with related proceedings concerning a co-accused (SafeWork NSW v Scharfe [2021] NSWDC 260), in which findings on causation had led to an amended summons in this matter.
On the notification offence under s 38, Mr Blackman's burns were a notifiable incident requiring immediate notification by the fastest available means. The company did not notify SafeWork NSW until approximately 2:35 pm the following day. A fine at the lower end of the scale was appropriate given the relative seriousness of this charge compared to the primary offence.
In mitigation, the court accepted that Hubtex Australia had no prior convictions, had good rehabilitation prospects demonstrated through post-incident safety improvements, had expressed genuine remorse, had paid some reparation to Mr Blackman, and had cooperated with the investigation. A 20% discount applied for the guilty plea, reflecting its utilitarian value. The court also noted the company's history as a good corporate citizen through its support for apprenticeships and community causes.
Orders Made
- Hubtex Australia Pty Ltd convicted of both offences.
- Fine of $120,000 imposed for the s 32 offence (base fine of $150,000, reduced by 20% for the guilty plea).
- Fine of $4,000 imposed for the s 38 offence (base fine of $5,000, reduced by 20% for the guilty plea).
- Total fines of $124,000.
- The offender to pay the prosecutor's costs as agreed or assessed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor.
Key Takeaways
- A failure to induct a young, inexperienced worker into relevant chemical hazards and safe work procedures, combined with inadequate supervision and unsecured storage of flammable substances, can constitute a serious breach of the primary duty under s 19(1) of the WHS Act even where the worker's own disobedience contributed to the incident.
- Under s 38 of the WHS Act, notification to the regulator must occur immediately after a notifiable incident by the fastest available means; a delay of over a day attracted a separate conviction and fine, though at the lower end of the penalty scale.
- The vulnerability of the injured person, including age and limited work experience, is an aggravating factor in WHS sentencing under the Crimes (Sentencing Procedure) Act 1999.
- A 20% guilty plea discount was applied, consistent with the range of 10 to 25% recognised in R v Thomson & Houlton and R v Borkowski, reflecting both utilitarian value and an indicator of remorse.
- Post-incident compliance with improvement notices, staff training, and genuine reparation to the injured worker all informed the court's assessment of good rehabilitation prospects and genuine contrition.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 38
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- SafeWork NSW v Scharfe [2021] NSWDC 260
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Longworth v R [2017] NSWCCA 119
- Ollis v R [2011] NSWCCA 155
- Perrin v R [2006] NSWCCA 64
- R v Tadrosse (2006) NSWLR 740
- R v Youkhana [2004] NSWCCA 412