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District Court 26 July 2022

SafeWork NSW v AST Services Pty Ltd

[2022] NSWDC 293

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF D EATH OR SERIOUS INJURY

Citation: SafeWork NSW v AST Services Pty Ltd [2022] NSWDC 293
Court: District Court of New South Wales
Date: 26 July 2022
Judge: Scotting DCJ

Background

A transport and logistics company, AST Services Pty Ltd, was engaged by a steel supplier to deliver bundled steel pipes from its Port Botany warehouse to a customer's site in Islington. The company subcontracted the actual delivery to a self-employed truck driver, Gregory Harris, who attended the Port Botany premises on 6 December 2019 to have his flatbed trailer loaded by the company's forklift operator.

The pipes were loaded in two sections. The rear section comprised bundles of three pipes stacked six high, with no cradles or stanchions fitted. Mr Harris secured the load with chains. When he arrived at the Islington site and began removing those chains, a bundle of three pipes weighing approximately 720 kilograms fell from the trailer and struck him.

Mr Harris, then aged 62 and with 30 years' experience as a heavy vehicle driver, sustained a concussion and crush injuries to both legs below the knee. His right leg was subsequently amputated below the knee, his left leg required reconstructive surgery and skin grafting, and he was unable to return to work.

  • Whether AST Services failed to comply with the primary duty of care under s 19(1) of the Work Health and Safety Act 2011, thereby exposing Mr Harris to a risk of death or serious injury, in contravention of s 32 of that Act
  • The appropriate sentence, including assessment of the objective seriousness of the offence
  • The applicable aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999
  • The appropriate discount for a guilty plea

Decision

The company pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011, and the matter proceeded to sentencing on agreed facts. The maximum penalty for the offence was a fine of $1.5 million.

On objective seriousness, the District Court assessed the offence as falling in the low to moderate range. The risk of harm from falling pipes was foreseeable and well-known, and the National Transport Commission's Load Restraint Guide 2018 specifically identified that chains alone may be insufficient to secure cylindrical loads such as pipes. Despite this, the company had no documented safe system of work for managing the risk of pipes falling from loaded flatbed trailers, provided no relevant training to its forklift operators, and relied on an informal practice of visual checks. The court noted, however, that the forklift operator did have authority to refuse an unsafe load, and that the offender had taken some steps prior to the incident.

The aggravating factor was the serious injury actually sustained by Mr Harris. Mitigating factors included: no prior convictions or safety breaches since the company's establishment in 2004; low likelihood of reoffending (the relevant business had since been sold); genuine remorse expressed on the company's behalf; cooperation with investigators; and the company's record as a good corporate citizen through charitable contributions. The court accepted the guilty plea as reflecting both utilitarian value and genuine contrition, applying a 25% discount.

Orders Made

  • AST Services Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
  • Fine of $280,000 reduced by 25% for the guilty plea, resulting in a fine of $210,000
  • 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 transport company with no documented load restraint procedures, and which provided no training on the Load Restraint Guide, was found to have failed its primary duty under s 19(1) of the Work Health and Safety Act 2011, even where the truck driver bore separate responsibility for chaining the load.
  • Objective seriousness was assessed in the low to moderate range where the risk was foreseeable, the harm was serious, but some limited safety steps had been taken prior to the incident.
  • Under the sentencing framework, the actual occurrence of serious injury constituted an aggravating factor, even though the offence is made out by proof of exposure to risk rather than proof of actual harm.
  • A 25% guilty plea discount was applied, consistent with R v Thomson & Houlton and R v Borkowski, reflecting both the utilitarian value of the plea and the inference of remorse it supported.
  • The sale of the offending business after the incident, combined with a clean prior record and evidence of post-incident remediation, supported findings of low reoffending risk and good rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), Division 10, cls 54–55
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
- Load Restraint Guide 2018 (National Transport Commission)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412