Citation: SafeWork NSW v Australian Softwood Pty Ltd [2022] NSWDC 242
Court: District Court of New South Wales
Date: 30 June 2022
Judge: Strathdee DCJ
Background
The defendant, Australian Softwood Pty Ltd, operated the Allied Timber Products sawmill at Raglan, NSW. The company had only commenced operations at the site in January 2019, having never previously run a sawmill. On 22 July 2019, a casual forklift driver employed through a labour hire firm was loading packs of timber onto a truck driven by a transport worker, Thomas Williamson.
During the loading operation, a pack of timber fell from the truck. Mr Williamson was found unresponsive on the ground beside the vehicle. He was airlifted to hospital with catastrophic injuries, including severe traumatic brain injury and multiple fractures. He was certified brain dead on 24 July 2019.
SafeWork NSW prosecuted the defendant under s 32 of the Work Health and Safety Act 2011 (NSW), alleging a failure to comply with the primary duty of care under s 19(1) of that Act, which exposed workers, and Mr Williamson in particular, to a risk of death or serious injury.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking (PCBU), failed to ensure so far as was reasonably practicable the health and safety of workers at the site, contrary to s 19(1) of the WHS Act
- The appropriate sentence, including the objective seriousness of the offence
- What weight to give to aggravating and mitigating factors, including the fatal outcome, the defendant's cooperation, its lack of prior convictions, and its guilty plea
- The appropriate discount to apply for the utilitarian value of the guilty plea
Decision
The defendant pleaded guilty to the charge. The court proceeded to sentence, having considered an agreed statement of facts, victim impact statements from Mr Williamson's family, and an affidavit going to the defendant's corporate character.
On objective seriousness, the court noted that extensive guidance material had been available to the defendant at the time of the incident. This included the Work Health and Safety Regulation 2017 (NSW), which required the management of risks from falling objects, and multiple industry guides recommending exclusion zones to separate pedestrians from forklift operations during loading and unloading. The defendant was a relatively new entrant to sawmill operations with no prior experience in that industry.
The court identified the death of Mr Williamson as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, being harm greater than might ordinarily be expected for the offence. The court accepted that the creation of a risk alone is sufficient to establish the offence, but that the actual fatal outcome warranted treatment as an aggravating circumstance.
Mitigating factors included the defendant's cooperation with SafeWork's investigation, its absence of prior convictions, evidence of good corporate character through community engagement and local employment, and good prospects of rehabilitation. The court allowed a 25% discount on the fine for the guilty plea entered on 13 December 2021, accepting the prosecution's submission that the maximum utilitarian discount was available.
Orders Made
- The defendant is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- A fine of $350,000 was assessed as the appropriate penalty, reduced by 25% for the guilty plea
- The defendant is ordered to pay a fine of $262,500
- 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 ordered to pay the prosecutor's agreed costs of $37,956.35
Key Takeaways
- A PCBU that had never previously operated a sawmill was held to a high standard of care, with the availability of detailed regulatory guidance and industry standards forming part of the sentencing assessment of objective seriousness.
- Under the WHS Act, the offence is established by the creation of a risk to workers; however, where a worker actually dies as a result of the conduct, the court treated the fatal outcome as an aggravating factor going beyond the ordinary consequences of the offence.
- The District Court applied a maximum 25% discount for guilty plea, consistent with the principles in R v Thomson and Houlton, where the prosecution accepted that the plea had been entered at the earliest reasonable opportunity.
- Mitigating factors relevant to corporate defendants can include cooperation with the regulator's investigation, absence of prior convictions, evidence of good corporate character in the community, and demonstrated prospects of rehabilitation.
- A fine assessed at $350,000 before discount reflects placement below the statutory maximum, with the final penalty of $262,500 representing the sentencing court's balancing of objective seriousness against a strong subjective case.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), particularly ss 19(1) and 32
- Work Health and Safety Regulation 2017 (NSW), cls 54 and 55
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412
- 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
- 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
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531