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District Court 16 December 2022

SafeWork NSW v Autocare Services Pty Limited (No 2)

[2022] NSWDC 641

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

Citation: SafeWork NSW v Autocare Services Pty Limited (No 2) [2022] NSWDC 641
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Russell SC DCJ

Background

A heavy vehicle driver employed by a vehicle transportation company died on 15 May 2019 while performing running repairs to the air lines of a car-carrying trailer. As he worked, a deck of the trailer descended and crushed him. The incident gave rise to a prosecution under the Work Health and Safety Act 2011 (NSW).

SafeWork NSW charged the employer company (referred to here as the transport company) with failing to comply with its primary duty of care under s 19 of the Act, thereby exposing the worker to a risk of death or serious injury, contrary to s 32. The maximum penalty for such an offence is a fine of $1,500,000.

The transport company entered a guilty plea on 29 April 2022. A disputed facts hearing was held in November 2022 to resolve which specific failures had been established, and this second judgment deals with the resulting sentence and costs.

  • What level of objective seriousness did the offence reach, and how did that inform the appropriate fine?
  • What mitigating and aggravating factors applied, and what discount should be granted for the guilty plea?
  • What proportion of the prosecutor's costs should the transport company bear, given that the prosecutor succeeded on some particulars but failed on others?
  • How should the fine be apportioned under the Fines Act 1996 (NSW)?

Decision

Objective seriousness and fine. In the earlier judgment ([2022] NSWDC 547), the court found that the transport company had admitted two specific failures: it had not prohibited non-maintenance workers from performing minor running repairs on trailers, and it had not required those workers to seek prior authorisation from the maintenance supervisor before doing so. The court placed the offence in the mid-range of objective seriousness, rejecting the defence submission that it fell in the lower range. The starting point for the fine was $600,000.

Guilty plea discount. The transport company received a 25% reduction for its guilty plea, reducing the fine to $450,000. The court took into account the company's mitigating circumstances, including its generally sound safety systems, the training provided to drivers (including explicit warnings not to place any part of the body under an unsupported deck), and its financial capacity to pay.

Costs. The prosecutor succeeded in establishing the core breach that grounded the conviction, and was justified in bringing the proceedings. However, the transport company succeeded at the disputed facts hearing on the majority of the additional measures pleaded. The court also noted that the prosecutor's cross-examination of the defence witness meaningfully reduced the weight of that evidence. Balancing these considerations, the court ordered the transport company to pay 75% of the prosecutor's costs.

Fines Act allocation. Consistent with s 122(2) of the Fines Act 1996 (NSW), the court ordered that 50% of the fine be paid to the prosecutor.

Orders Made

  • The transport company was convicted on 13 December 2022.
  • A fine of $450,000 was imposed (being $600,000 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 transport company is to pay 75% of the prosecutor's costs.

Key Takeaways

  • A transport company's failure to prohibit non-maintenance workers from performing running repairs on trailers, where such work created a risk of being struck or crushed by moving equipment, was held to fall in the mid-range of objective seriousness under the Work Health and Safety Act 2011 (NSW).
  • The District Court confirmed that a 25% guilty plea discount remained available even where the plea was entered after amendment of the summons and following a contested disputed facts hearing.
  • Where a prosecutor establishes only some of the measures pleaded as reasonably practicable, partial costs orders are an available outcome: the court's 75% costs order reflected the transport company's success on the majority of the disputed particulars.
  • Under s 122(2) of the Fines Act 1996 (NSW), courts may direct that a portion of a WHS penalty be paid directly to the prosecuting authority, as occurred here with 50% of the fine.
  • Robust driver training and formal safety systems were treated as mitigating factors, but did not displace the mid-range seriousness finding where the core risk of crushing by trailer deck movement went unaddressed by an outright prohibition on driver-performed repairs.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122

Cases
- SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547 (earlier judgment in the same proceedings)
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432