Citation: SafeWork NSW v Camden Council [2021] NSWDC 709
Court: District Court of New South Wales
Date: 21 December 2021
Judge: Strathdee DCJ
Background
Camden Council managed the Camden Bicentennial Equestrian Park, a large community facility covering approximately 200 acres. In 2016, the Council delegated the ongoing management of the park to a Community Management Committee, which in turn relied on volunteers from the local Men's Shed organisation to carry out maintenance tasks.
On 3 July 2018, Men's Shed volunteers, including Garry Todhunter and Ronald Gunn, attended the park to lay irrigation pipe as part of works the Council was completing. The operation involved a 500-metre length of pipe being pulled by two vehicles and guided around bends using an excavator bucket and star pickets. Mr Todhunter and Mr Gunn were using crowbars to assist when the moving pipe struck Mr Todhunter in the back of the head. He suffered a skull fracture, underwent emergency surgery, and died on 10 July 2018. Mr Gunn sustained grazes.
No Council employees were present to supervise the pipe installation. Neither Mr Todhunter nor Mr Gunn had received an induction when they commenced as Men's Shed volunteers.
Legal Issues
- Whether Camden Council failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury, contrary to s 32 of that Act.
- What constituted the appropriate sentence, having regard to the objective seriousness of the offence, relevant aggravating and mitigating factors, general and specific deterrence, and the Council's capacity to pay.
- What discount, if any, was warranted for the early plea of guilty.
Decision
Camden Council pleaded guilty on 13 September 2021. The court proceeded to sentence, assessing the offence against the full range of relevant sentencing considerations under the Work Health and Safety Act 2011 and the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court found the objective seriousness of the offence was significant. The risk that materialised was foreseeable. A risk assessment commissioned by the Council itself, received in about March 2016 (more than two years before the incident), had specifically identified that work health and safety obligations under the Committee's procedural manual were not being met. That report recommended the development of a competency-based induction program for high-risk volunteers and a procedure for managing plant and equipment, including risk assessments. Those recommendations had not been implemented by the time of the incident. Volunteers received no induction, and no Council employees were on site to supervise the hazardous pipe-laying operation.
On mitigating factors, the court accepted that the Council had cooperated with SafeWork's investigation, had no prior convictions, had demonstrated some remorse and contrition (albeit at a late stage), had supported Mr Todhunter's family, and had taken steps to improve its workplace safety culture. The court noted some concern that Mr Todhunter's daughter reported no formal apology had been received by the time of sentencing. Nonetheless, the court accepted the mitigating value of these matters. An early guilty plea attracted the maximum available discount of 25 percent, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383.
The court set the appropriate fine before discount at $1,000,000, out of a maximum of $1,500,000 for a corporation. After applying the 25 percent guilty plea discount, the final fine was $750,000.
Orders Made
- Camden Council was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $750,000 was imposed (reflecting a pre-discount figure of $1,000,000 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 Council is to pay the prosecutor's costs as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A local council acting as a person conducting a business or undertaking can be held criminally liable under s 19(1) of the Work Health and Safety Act 2011 for the safety of volunteers, including those working through a delegated community management committee structure.
- Where a defendant had received a formal risk assessment identifying specific safety deficiencies well before an incident, failure to act on those recommendations is a significant factor in assessing objective seriousness at sentence.
- The absence of supervision and the failure to provide inductions to volunteers performing hazardous tasks contributed materially to the court's assessment of the gravity of the offending.
- An early guilty plea attracted the maximum 25 percent utilitarian discount, consistent with R v Thomson & Houlton, even where some mitigating factors (such as remorse) were found to be only partially established.
- The District Court imposed a fine of $750,000, against a maximum of $1,500,000, signalling that offences involving a foreseeable fatal risk to unsupervised and uninducted volunteers will be treated as objectively serious.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
- Local Government Act 1993 (NSW), ss 355, 377
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- 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