Citation: SafeWork NSW v ACN 158 085 217 Pty Ltd (previously known as Territory Transport Pty Ltd) [2022] NSWDC 420
Court: District Court of New South Wales
Date: 21 September 2022
Judge: Scotting DCJ
Background
The defendant company, formerly known as Territory Transport Pty Ltd, operated an interstate linehaul transport business from a depot in Hanwood, New South Wales. It employed Gregory Edwards as a linehaul driver from July 2018. Mr Edwards had more than 20 years of truck driving experience.
On 5 November 2019, Mr Edwards arrived at Ingleburn, Sydney, to oversee the unloading of two passenger vehicles from a trailer. When he removed the safety chain from one of the trailer's hydraulic loading ramps and walked underneath it, the ramp fell and pinned him. Despite efforts by bystanders to lift the ramp, Mr Edwards was pronounced dead at the scene.
Subsequent examination revealed a long-standing hydraulic oil leak in the trailer's hydraulic system. The reservoir was empty and the system was unable to hold the ramps in position once the safety chains were removed. The leak had been present for some time and was visibly detectable through a substantial build-up of wet dirt on the affected components.
Legal Issues
- Whether the company breached its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 by exposing Mr Edwards to a risk of death or serious injury
- What the appropriate penalty was, having regard to objective seriousness, aggravating and mitigating factors, deterrence, and the offender's capacity to pay
- What discount, if any, was warranted for the guilty plea
- Whether the company's capacity to pay should reduce the fine
Decision
The company pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011, admitting it failed to comply with its primary duty as an employer under s 19(1). The maximum penalty for the offence is a fine of $1.5 million. The company did not appear at the sentencing proceedings, but its director corresponded with the Court and confirmed the plea and agreed facts.
The Court assessed the objective seriousness of the offence as significant. The hydraulic defect was visually detectable and had existed for some time. The company had access to an Owner's Manual that expressly warned of the risks of hydraulic system failure and of standing under unsecured ramps. Industry guidance material, including relevant Codes of Practice and Safety Alerts from other states, also identified the risk and appropriate controls. Despite this, the company had no documented system requiring drivers to conduct daily checks of trailers, and no evidence of any pre-start inspection of the trailer on the day of the incident.
On mitigating factors, the Court accepted the guilty plea as reflecting remorse and giving it some utilitarian value. The director's correspondence also expressed a desire to bring closure to Mr Edwards's family. No prior convictions were recorded against the company. The Court noted that the director had indicated personal financial hardship, but no supporting evidence was placed before the Court. The absence of evidence meant the company's asserted limited capacity to pay carried little weight, though the Court remained mindful that a failed business has a genuinely constrained ability to pay.
The Court applied a 25% discount to the penalty to reflect the guilty plea, consistent with the authorities governing sentencing discounts. Starting from a pre-discount fine of $480,000, the Court imposed a final fine of $360,000.
Orders Made
- The company is convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- A fine of $360,000 is imposed (reduced by 25% from $480,000 to reflect the guilty plea).
- The company is ordered to pay SafeWork NSW's costs in the sum of $65,430.38.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A transport company's failure to maintain a trailer's hydraulic system, or to require documented daily pre-start checks, constituted a breach of the primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 where a worker was killed as a result.
- Visually detectable equipment defects that go uninspected weigh heavily toward objective seriousness, particularly where the Owner's Manual and publicly available industry guidance material expressly identified the risk and appropriate controls.
- Under the sentencing framework applied, an offender's asserted limited financial capacity carries little weight where no supporting evidence is tendered to the Court; the District Court found the director's unsubstantiated claims of hardship insufficient to reduce the fine further.
- A 25% discount applied to the penalty to reflect the utilitarian value of the guilty plea and as an indicator of remorse, consistent with the approach in R v Thomson & Houlton and R v Borkowski.
- Victim impact statements from the deceased's family were accepted as relevant to the assessment of harm done to the community, even where family members expressed some sympathy toward the offender personally.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412