Citation: SafeWork NSW v Roadworx Surfacing Pty Ltd [2022] NSWDC 616
Court: District Court of New South Wales
Date: 9 December 2022
Judge: Strathdee DCJ
Background
Roadworx Surfacing Pty Ltd is a road maintenance business based in Unanderra, NSW. In August 2019, the company was engaged by Kiama Council to carry out crack sealing works on Jamberoo Road. The work involved a crack sealing machine (CSM) that heated a bitumen-rubber product called Bituflex to approximately 300 degrees Celsius, which was then applied to road surfaces through a hand-held lance.
The CSM had several known deficiencies at the time of the incident. Its indicator lights for monitoring product levels had stopped working, forcing workers to open an inspection hatch to check levels manually. The original heated hose had also been out of service since at least 2013, and the company had substituted a non-heated hose and modified the machine accordingly. Workers used diesel as a solvent to flush the pipework.
On 19 August 2019, a worker (referred to in the judgment as Mr Palmer) opened the inspection hatch to check the Bituflex level after diesel had been flushed back into the hot tank. The introduction of air triggered an autoignition event. An explosion and fire occurred, and Mr Palmer, who was not wearing a face shield or any other personal protective equipment (PPE), suffered burn injuries to his face, ears and neck. He required surgery at the Burns Unit at Concord Hospital, including debridement and xenografting (a skin graft procedure using animal tissue). He subsequently engaged with a psychologist and, as at mid-2021, continued to experience sensitivity to sun and heat.
Legal Issues
- Whether the defendant breached its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the safety of its workers so far as reasonably practicable, and whether that breach exposed Mr Palmer to a risk of serious injury or death, contrary to s 32 of the Act.
- What was the appropriate sentence, including the objective seriousness of the offence, any aggravating or mitigating factors, the weight to be given to the guilty plea, and the considerations of general and specific deterrence.
- What discount should apply to the fine in light of the timing of the guilty plea.
- Whether the prosecutor's costs should be awarded.
Decision
The defendant pleaded guilty to the charge under s 32 of the Work Health and Safety Act 2011 (NSW). The court proceeded to sentence, and assessed the objective seriousness of the offence in the context of a maximum penalty of $1.5 million. Several systemic failures contributed to the incident: the faulty level indicator lights had been left unrepaired, the original heated hose had not been replaced, the CSM had been modified without adherence to safety standards, diesel was being used as a solvent in proximity to a highly heated tank, no adequate risk assessment addressed these hazards, and no PPE or burn kit was available at the worksite.
The court identified the objective seriousness of the offence as significant. The risks were foreseeable, relevant codes of practice and regulatory obligations were not met, and the measures reasonably available to eliminate or minimise the risk had not been taken. Available guidance materials, including WorkCover NSW codes of practice on plant management and hazardous chemicals, directly addressed the types of hazards present. The absence of PPE and a burn kit compounded the seriousness of the breach.
On mitigating factors, the court accepted that the defendant cooperated with the SafeWork investigation and that the guilty plea, while not entered at the first available opportunity, carried utilitarian value to the justice system. The plea was entered approximately nine months after the summons was filed, in May 2022. The court acknowledged that the defendant's solicitor and counsel had each experienced personal and health difficulties causing some of the delay, and disregarded delay attributable to those circumstances. However, the court was not satisfied the plea was entered at the first available opportunity, and applied a discount of 15% rather than the maximum of 25%.
Regarding specific deterrence, the court noted that the defendant had taken some remedial steps following the incident but found it could not be said that reoffending was unlikely. Before arriving at a final figure, the court assessed the appropriate pre-discount fine at $400,000 and applied the 15% reduction, producing a final fine of $340,000. The court also ordered the defendant to pay the prosecutor's costs and directed that 50% of the fine be paid to the prosecutor in accordance with the Fines Act 1996 (NSW).
Orders Made
- The defendant was convicted.
- A fine of $400,000 was assessed as appropriate, reduced by 15% to reflect the guilty plea, resulting in a final fine of $340,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 (NSW) does not require that actual injury occur; it is sufficient that the failure to comply with the primary duty exposed a worker to a risk of serious injury or death.
- The District Court treated the accumulation of unaddressed equipment failures (faulty indicator lights, inoperable original hose, machine modifications, absence of PPE and burn kit) as relevant to the objective seriousness of the offence, rather than viewing each deficiency in isolation.
- Under the sentencing discount framework in R v Thomson & Houlton, a 15% discount was applied where a guilty plea was entered roughly nine months after the summons was filed; the court confirmed that the maximum discount of 25% is reserved for pleas at the earliest possible opportunity.
- Where defence representatives experience personal or health difficulties contributing to delay in entering a plea, the court may disregard that portion of the delay when assessing the appropriate discount, provided it is satisfied those difficulties genuinely caused the relevant adjournments.
- Partial remediation following a workplace incident does not automatically establish that reoffending is unlikely for the purposes of specific deterrence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 21, 32
- Work Health and Safety Regulation 2017 (NSW), cls 34, 35, 39, 44(2), 203, 205, 206, 291(n), 299, 351
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(k), (m)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357
- Kirk v Industrial Commission of New South Wales [2010] HCA 1
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632