AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 30 September 2022

SafeWork NSW v KML Auto Electrics Pty Ltd

[2022] NSWDC 439

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY VULNERABLE WORKER SENTENCE

Citation: SafeWork NSW v KML Auto Electrics Pty Ltd [2022] NSWDC 439
Court: District Court of New South Wales
Date: 30 September 2022
Judge: Strathdee DCJ

Background

KML Auto Electrics Pty Ltd operated an auto electrical repair business from a workshop in Brocklehurst, NSW. The company's sole director, Mr Lew, employed Darby Paxton as a first-year apprentice auto electrician from 6 January 2020. At the time of the incident, Darby was 18 years old and had only 18 days of industry experience, including his prior work experience placement.

The company was engaged to perform electrical repairs on a 2001 Isuzu tilt-cab truck, which required the cab to be raised. The truck's cab tilt stay system (CTSS) included a spring-loaded lever and a manually installable lock pin, secured by a bright yellow chain, designed to prevent the cab from falling if the lever was inadvertently contacted. On 13 January 2020, Mr Lew raised the cab, heard the lever click into place, and shook the cab to check stability. He did not inspect whether the lock pin was in place, assuming the truck would not have one given its age.

On 15 January 2020, Mr Lew left the workshop to attend a breakdown elsewhere, leaving Darby alone with instructions to complete other tasks. After finishing those tasks, Darby continued working beneath the raised cab. He inadvertently contacted the lever, causing the cab to fall. He was crushed and died from mechanical asphyxia. Mr Lew returned approximately three hours later to find Darby beneath the cab.

  • What was the appropriate starting fine for an offence under s 32 of the Work Health and Safety Act 2011 (NSW), having regard to the objective seriousness of the conduct?
  • What discount, if any, should apply to reflect the utility of the early guilty plea?
  • What weight should be given to the vulnerability of the deceased worker as an aggravating factor?
  • What weight should be given to mitigating factors, including remorse, contrition, and the defendant's capacity to pay?
  • Whether the defendant should pay the prosecutor's costs, and in what amount?

Decision

The court assessed the objective seriousness of the offending as high. The defendant failed to implement any safe system of work for employees working beneath the raised cab. Mr Lew did not inspect the lock pin, did not instruct Darby on the hazard, and then left an inexperienced 18-year-old alone to work in proximity to the unsecured cab. The court found the risk was well-known and readily controllable by measures such as inserting the lock pin, isolating access to the area, or implementing a clear system of work when the cab was raised.

The court considered comparable decisions, including Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, where the Court of Criminal Appeal identified a starting point of $400,000 for a fatal workplace fall involving high-risk construction work. Strathdee DCJ distinguished that case, noting that Darby was a particularly vulnerable worker on only his eighth day on the job, that he was left entirely alone with no supervision, and that Mr Lew had not even checked the lock pin. The court found the present offending was objectively more serious than Jamestrong and set a starting fine of $500,000.

The defendant received a 25% discount on that figure for the utility of its early guilty plea, in accordance with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383. The court also addressed general and specific deterrence, noting that the need for general deterrence in work health and safety prosecutions is well established. The defendant's remorse, co-operation, and capacity to pay were considered, but these factors did not displace the centrality of the objective seriousness of the conduct.

Orders Made

  • The defendant is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
  • A fine of $375,000 is imposed (being $500,000 reduced by 25% for the guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • The defendant is to pay the prosecutor's costs in the agreed sum of $32,600.00 (exclusive of GST), pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • The District Court confirmed that the vulnerability of a deceased worker, particularly a young and inexperienced apprentice left unsupervised, is a significant factor in assessing the objective seriousness of a WHS offence, capable of warranting a higher starting point than in cases involving experienced workers on a staffed site.
  • A starting fine of $500,000 was set where an employer left an 18-year-old on his eighth day of employment alone to work near a raised truck cab, without inspecting the cab's safety mechanism or providing any instruction about the associated hazard.
  • Where a risk is well-known and control measures are straightforward and readily available, the failure to implement any controls weighs heavily toward high objective seriousness.
  • An early guilty plea attracted a 25% discount, consistent with established NSW sentencing principles for the utility of such pleas in WHS prosecutions.
  • The objective seriousness of the conduct remained the dominant sentencing factor, with mitigating circumstances including remorse and capacity to pay considered but not displacing the primary weight given to the nature and gravity of the breach.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cll 24, 35, 54, 55
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases
- Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson & Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v Haines Bros Earthmoving Pty Limited [2019] NSWDC 69
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314