Citation: SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275
Court: District Court of New South Wales
Date: 21 July 2022
Judge: Russell SC DCJ
Background
Mondiale VGL Pty Ltd (formerly Visa Global Logistics Pty Ltd) operated a transport and logistics business from a container handling facility at Banksmeadow, NSW. On 29 November 2018, a truck driver employed by Mondiale was fatally crushed by a reversing reach stacker, a piece of heavy plant weighing over 70 tonnes, while he stood at the rear of his trailer in the container yard area to secure a container with twist locks.
The incident arose during a container repositioning exercise. Because the container doors were facing the wrong direction, both the truck driver and the reach stacker operator moved into the container yard, which the site's own Traffic Management Plan designated as a "no vehicle access or unauthorised personnel" zone. After placing the container, the reach stacker operator reversed while carrying another container, looking forward rather than behind, and struck and fatally injured the truck driver.
Mondiale pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence was a fine of $1,500,000. The sentencing proceedings addressed the appropriate penalty, aggravating and mitigating factors, and costs.
Legal Issues
- What was the objective seriousness of the offence, having regard to the nature and extent of the duty breach and the risk created?
- What mitigating and aggravating factors applied, including the early guilty plea, the defendant's prior compliance record, and the impact on the victim's family?
- What fine was appropriate given Mondiale's capacity to pay and the purposes of general and specific deterrence?
- How should the fine be apportioned, including any payment to the prosecutor under the Fines Act 1996 (NSW)?
- Should Mondiale be ordered to pay the prosecutor's costs?
Decision
The court found that Mondiale had failed in multiple, concrete respects. It did not enforce the exclusion zone designated in its own Traffic Management Plan, failed to implement clearly marked driver safety zones, did not adequately instruct or train workers on the precise location of those zones, and failed to identify the hazards associated with loading and repositioning containers by reach stacker in the container yard. These failures were particularly significant because Mondiale's own documentation recognised the risks, yet the container yard was routinely used for repositioning in a way that contradicted the TMP.
On objective seriousness, the court noted that the risk of death or serious injury from a 70-tonne reach stacker operating in proximity to pedestrians was obvious and foreseeable, and that reasonably practicable measures to address it were available and well known, including through published codes of practice. The gap between Mondiale's documented policies and their actual enforcement on the ground was a central feature of the breach. Internal inspections conducted in the weeks before the incident had reported no concerns, which the court treated as reflecting inadequate oversight rather than genuine compliance.
In mitigation, the court gave credit for Mondiale's early guilty plea, reducing the base fine by 25%. The court also considered Mondiale's cooperation with investigators, its lack of prior convictions, and remediation steps taken after the incident. The victim impact statements from Mr Marlow's widow and daughter were taken into account as reflecting harm done to the broader community, consistent with the relevant sentencing principles.
The court assessed the appropriate fine at $500,000 before the guilty plea discount, arriving at a final figure of $375,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of that fine was directed to be paid to SafeWork NSW as the prosecutor.
Orders Made
- Mondiale VGL Pty Ltd convicted on 15 July 2022.
- Fine of $375,000 imposed (representing $500,000 reduced by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW.
- Mondiale VGL Pty Ltd to pay the prosecutor's costs.
Key Takeaways
- A documented safety plan that is not enforced in practice will not shield a duty holder from liability under the Work Health and Safety Act 2011 (NSW); the gap between Mondiale's written policies and actual site practice was central to the court's assessment of the breach.
- Under section 32 of the WHS Act, a failure to comply with a duty that exposes a worker to a risk of death or serious injury carries a maximum fine of $1,500,000, and the court set the base penalty at $500,000 before applying the guilty plea discount.
- An early guilty plea attracted a 25% reduction in the fine, consistent with the sentencing principles applicable under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Victim impact statements from family members of a deceased worker are relevant to sentencing in WHS prosecutions, on the basis that the harm suffered by the victim's family is an aspect of harm done to the community.
- The District Court applied section 122(2) of the Fines Act 1996 (NSW) to direct that half the penalty be paid to the prosecuting regulator, SafeWork NSW, reflecting the statutory scheme for allocation of fines in WHS prosecutions.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465