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District Court 7 December 2022

SafeWork NSW v Tyne ACFS Pty Ltd

[2022] NSWDC 609

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Tyne ACFS Pty Ltd [2022] NSWDC 609
Court: District Court of New South Wales
Date: 7 December 2022
Judge: Strathdee DCJ

Background

The defendant, Tyne ACFS Pty Ltd, operated an empty container depot at Matraville, NSW, handling hundreds of truck movements daily. On 25 September 2019, a container surveyor employed at the depot, referred to here as Mr Ho, was accompanying a third-party surveyor to inspect containers along the depot's eastern border. The two men entered a narrow passageway of approximately 50 to 60 centimetres between a container stack and the container under inspection.

While Mr Ho was exiting the passageway, a forklift operator was reversing a laden empty container handler nearby. The container being moved struck the inspected container, forcing it into the stack and closing the passageway. Mr Ho was pinned and crushed between the containers. Emergency services attended, but Mr Ho could not be revived.

The defendant pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW), admitting it had failed to comply with its primary duty under section 19(1) of that Act to ensure the safety of workers so far as was reasonably practicable, and that its failure exposed Mr Ho to a risk of serious injury or death.

  • What was the appropriate fine, having regard to the objective seriousness of the offence and the maximum penalty of $1.5 million?
  • What mitigating and aggravating factors applied to the sentence?
  • What discount, if any, should be applied for the utilitarian value of the early guilty plea?
  • What costs order should be made in favour of the prosecutor?

Decision

The court assessed the offence as falling in the middle range of objective seriousness. Industry guidance materials published well before the incident clearly directed duty holders to separate pedestrians from forklifts and mobile plant, including through physical barriers and exclusion zones. The defendant had a traffic management plan and documented safety procedures, but those measures did not adequately address the interaction between surveyors on foot and forklift operations in the yard, particularly in the confined passageway where the incident occurred.

On mitigating factors, the court accepted that the defendant had a good industrial safety record and took prompt remedial action after the incident, including implementing new safety measures to prevent similar crushing risks. The affidavit of the company director was accepted as demonstrating genuine remorse and contrition, and the defendant had provided counselling to employees and financial and moral support to Mr Ho's family. The court also noted the defendant's cooperation with SafeWork NSW's investigation.

The court set the appropriate pre-discount fine at $400,000. It then applied a 25% reduction, being the maximum available discount, for the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. This produced a final fine of $300,000.

A victim impact statement from Mr Ho's widow and son was received and acknowledged by the court, reflecting the profound personal loss suffered by the family.

Orders Made

  • The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
  • A fine of $400,000 was assessed as appropriate, reduced by 25% for the early guilty plea, resulting in a fine of $300,000.
  • Pursuant to section 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 $53,000, pursuant to section 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • The District Court placed the offence in the middle range of objective seriousness, reflecting the defendant's failure to implement adequate pedestrian and forklift separation measures despite the availability of clear industry guidance well before the incident.
  • A 25% discount for the utilitarian value of an early guilty plea was applied, consistent with the established principles in R v Thomson and Houlton, reducing the fine from $400,000 to $300,000.
  • Where a defendant demonstrates genuine remorse, cooperates with the regulator's investigation, takes prompt post-incident remedial action, and has a good prior safety record, these factors collectively reduce the appropriate penalty in WHS sentencing.
  • Documented safety procedures and a traffic management plan did not, of themselves, satisfy the duty of care where those documents failed to address the specific interaction between pedestrian surveyors and forklift operations in confined areas of the yard.
  • Under section 122(2) of the Fines Act 1996 (NSW), 50% of a WHS fine is payable to the prosecutor, in addition to any separate costs order.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Kirk v Industrial Commission of New South Wales [2010] HCA 1