Citation: SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306
Court: District Court of New South Wales
Date: 3 August 2022
Judge: Russell SC DCJ
Background
Tunny Pty Ltd operated a car dismantling and wrecking business, recycling vehicles and selling used automobile parts. On 15 June 2019, two workers were loading the dismantled tray of a flatbed truck into a shipping container using a wheel loader. The tray fell while suspended and struck one of the workers on his right torso, knocking him to the ground.
SafeWork NSW prosecuted both the company and its officer, Aidan Arthur Waring. The prosecution alleged that Tunny had failed to comply with its primary duty as a person conducting a business or undertaking (PCBU) under the Work Health and Safety Act 2011 (NSW), and that Mr Waring had failed to exercise due diligence as a company officer to ensure that Tunny met that duty.
Both defendants pleaded guilty to their respective offences. The proceedings before Russell SC DCJ concerned sentencing only.
Legal Issues
- Whether Tunny Pty Ltd, as a PCBU, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers, contrary to s 32 of that Act
- Whether Mr Waring, as an officer of Tunny, failed to exercise due diligence under s 27(1) of the Act to ensure that Tunny complied with its duty, contrary to s 32
- The appropriate penalties for each defendant, including the objective seriousness of each offence, applicable mitigating factors (including early guilty pleas), and the defendants' capacity to pay
- Whether the circumstances were so exceptional as to justify a dismissal without conviction or a conviction without penalty under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Decision
The court found that Tunny had failed in multiple respects to protect its workers from the risk of being struck by a suspended load. The failures identified included the absence of any risk assessment for the lifting task, no exclusion zone around suspended loads, no safe work procedure or safe work method statement for the use of the wheel loader, and no instruction, information or training for workers on safe lifting practices and equipment selection.
Mr Waring, as the company's officer, had not taken any of the reasonable steps that the "due diligence" obligation under s 27(5) of the Act required of him. The court noted that he did not regard compliance with that obligation as his function, a view the court treated as a significant failure given that the Act expressly imposes individual accountability on officers of companies.
The court assessed the objective seriousness of the offences and considered both aggravating and mitigating factors in fixing the base penalty. For each defendant, the base fine was then reduced by 25 per cent to reflect their early guilty pleas. The court rejected the submission that the circumstances were extraordinary or exceptional, finding it would be contrary to the objects of the Act and the public interest in enforcement to dismiss the charges without conviction or to impose a conviction without any financial penalty.
Orders Made
Tunny Pty Ltd:
- Convicted on 26 July 2022
- Fined $120,000 (reduced from a base of $160,000 by 25% for early guilty plea)
- 50% of the fine to be paid to SafeWork NSW as prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Aidan Arthur Waring:
- Convicted
- Fined $30,000 (reduced from a base of $40,000 by 25% for early guilty plea)
- 50% of the fine to be paid to SafeWork NSW as prosecutor, pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Ordered to pay the prosecutor's costs
Key Takeaways
- A PCBU's duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) encompasses the obligation to conduct risk assessments, establish exclusion zones around suspended loads, develop and enforce safe work procedures, and provide adequate training and instruction to workers engaged in hazardous lifting tasks.
- Under s 27 of the Act, officers of a company bear a distinct and personal obligation to exercise due diligence to ensure the company meets its WHS duties. That obligation is not discharged by simply leaving safety compliance to others within the business.
- The District Court confirmed that an officer's failure to even attempt to comply with the due diligence requirements of s 27(5) is a serious matter that weighs in the objective assessment of the offence.
- Where prosecutions are brought under the Act, the public interest in enforcement and the Act's objects, particularly protecting workers through elimination or minimisation of risk, are relevant considerations at sentencing and can weigh against non-conviction orders or penalties of a nominal character.
- A 25% discount on the base fine was applied in each case to reflect early guilty pleas, with the resulting penalties set at $120,000 for the company (maximum $1,500,000) and $30,000 for the officer (maximum $300,000), reflecting an assessment of each offence's objective seriousness.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cll 32 to 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 10A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
- Occupational Health and Safety Act 2000 (NSW), s 8(1)
Cases:
- Attorney-General of New South Wales v Tho Services Ltd (In Liquidation) [2016] NSWCA 221
- Baumer v R (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Inspector Christopher Downie v Menzies Property Services [2004] NSWIRComm 259
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton (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) 164 CLR 465