Citation: [2021] NSWDC 694
Court: District Court of New South Wales
Date: 17 December 2021
Judge: Scotting DCJ
Background
The defendant, a contracted fumigation company, employed a 20-year-old trainee fumigator over a period of approximately six months in 2017 and 2018. The company's work involved fumigating shipping containers and loose cargo using methyl bromide (MB), a colourless, odourless, and neurotoxic gas classified as a hazardous chemical under the Work Health and Safety Regulations 2017. MB is particularly dangerous because its effects can be delayed by up to several months after exposure, meaning workers may not realise they have been harmfully exposed.
During the relevant period, the trainee was regularly present inside fumigation exclusion zones for two to three hours per day, five to six days per week. He did not always wear a respirator, had a beard at times (which can compromise mask fit), was not always directly supervised, and the company never arranged blood testing for MB levels despite a senior fumigator's own blood test returning results more than twice the advisory guideline level in March 2018.
By May 2018, the worker had been admitted to hospital with bilateral visual loss, peripheral neuropathy, central nervous system toxicity, and other serious symptoms. Blood tests confirmed MB levels three times the upper normal limit, and he received renal dialysis to assist in removing the chemical from his system. SafeWork NSW prosecuted the company for failing to comply with its health and safety duty under the Work Health and Safety Act 2011.
Legal Issues
- Whether the company failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury (an offence under s 32 of that Act)
- The appropriate penalty, including the objective seriousness of the offence, the weight to be given to aggravating and mitigating factors, and the applicable discount for a guilty plea
Decision
The company pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011. The court proceeded to sentence, having regard to an Agreed Statement of Facts tendered by the parties.
On objective seriousness, the court assessed the offending as falling within the lower range, though still a serious offence. The court identified several specific failures: the company did not ensure the worker wore a respirator at all times in exclusion zones, did not confirm he was clean shaven before wearing respiratory equipment, failed to document work tasks or supervision, did not complete its own safety checklists during the relevant period, and did not arrange medical blood testing for MB exposure even after the worker reported symptoms and a senior fumigator had already returned elevated results.
The court found one aggravating factor: the actual harm suffered by the worker was greater than might ordinarily be expected for this type of offence, given that the offence requires only the creation of a risk rather than an injury. Applying the standard from R v Youkhana, the court was satisfied beyond reasonable doubt that the serious injuries sustained established this aggravation.
Several mitigating factors were accepted. The company had no prior convictions, had operated for 20 years, demonstrated genuine remorse through its managing director, had improved its safety systems since the incident, cooperated with the investigation, and had shown itself to be a good corporate citizen through charitable contributions. The court applied a 25% discount to reflect the utilitarian value of the guilty plea.
Orders Made
- The company was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $75,000 was imposed (reduced from $100,000 by 25% to reflect the guilty plea).
- The company was ordered to pay the prosecutor's costs in the agreed sum of $65,000.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A company's failure to enforce its own documented safety procedures, including completing its own safety checklists and ensuring consistent use of respiratory protective equipment, can constitute a breach of the primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011.
- Under s 32 of the Work Health and Safety Act 2011, the offence requires only the creation of a risk of death or serious injury, not actual harm. However, where serious injuries do result, those injuries can establish an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, provided the harm is greater than ordinarily expected for the offence.
- The District Court confirmed that a 25% discount applied where the guilty plea was entered, consistent with the principles in R v Thomson & Houlton and R v Borkowski, and that a guilty plea can independently evidence remorse.
- The relative size of the offending business and the quantum of the prosecutor's costs order were matters taken into account in arriving at the overall penalty, demonstrating the sentencing court's holistic approach to penalty calibration.
- Post-incident remediation of safety systems, cooperation with investigators, and absence of prior convictions each operated as distinct mitigating factors, though none negated the seriousness of the underlying failure to protect a young and inexperienced worker from a known chemical hazard.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulations 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), (h), (i), (k), (m); s 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383