Citation: SafeWork NSW v Go Go Petroleum Pty Ltd [2022] NSWDC 96
Court: District Court of New South Wales
Date: 4 April 2022
Judge: Russell SC DCJ
Background
Go Go Petroleum Pty Ltd was the principal contractor engaged to construct a petrol service station in Wagga Wagga. Part of that work involved installing an underground fuel system, including fibreglass storage tanks that required pressure testing before commissioning. The company's general practice was to engage a licensed specialist contractor for this task.
On 26 February 2018, a worker named Mr Hicks, a licensed plumber with no training or prior experience in pressure testing underground fuel tanks, undertook that task himself. He connected a compressor capable of delivering pressures far exceeding the safe limit. The manufacturer's instructions clearly stated a maximum test pressure of 35 kPa. Mr Hicks applied pressure approximately ten times that limit. The tank exploded.
Go Go Petroleum pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Hicks to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000. The sentencing proceedings concerned the appropriate penalty, taking into account objective seriousness, mitigating and aggravating factors, the guilty plea, deterrence, and the company's financial position.
Legal Issues
- What was the appropriate level of objective seriousness of the offence?
- What mitigating and aggravating factors applied to the sentencing?
- What weight should be given to the early guilty plea?
- What penalty was proportionate given the company's size and financial position?
- What costs order was appropriate?
Decision
The court found the offence to be of moderate objective seriousness. The risk of death or serious injury from an unqualified worker applying ten times the safe pressure limit to a fuel tank was obvious and significant. The company had failed on multiple fronts: it did not ensure adequate information, instruction, or training for its workers; it did not provide competent on-site supervision; and it did not enforce its own general practice of engaging a licensed specialist for pressure testing. Critically, a worker had performed this type of testing on at least one prior occasion without intervention, indicating a systemic gap rather than an isolated lapse.
Several mitigating factors were identified. Go Go Petroleum had no prior convictions under work health and safety legislation. It cooperated with the investigation and entered an early guilty plea. The court also accepted that the company had suffered significant financial consequences from the incident itself, including a project cost overrun of approximately $450,000 to $500,000 arising from the damage caused by the explosion.
The court took into account the company's reduced financial capacity. Go Go Petroleum had made no profit since the incident, was no longer undertaking similar construction work, and its sole director had been conducting only small personal consulting jobs to service the company's debts. The impact of COVID-19 had further diminished the director's capacity to generate income for the company. The court accepted the submission that the company's reduced size and activity should be reflected in the penalty.
Starting from a base fine of $160,000, the court applied a 25 percent reduction for the early guilty plea, arriving at a final fine of $120,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50 percent of that fine was directed to be paid to the prosecutor, SafeWork NSW.
Orders Made
- Go Go Petroleum Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- Fined $120,000 (reduced from a base of $160,000 by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine directed to be paid to the prosecutor.
- Go Go Petroleum Pty Ltd ordered to pay the prosecutor's agreed costs of $43,434.92.
Key Takeaways
- A company's general policy of engaging licensed contractors for a hazardous task does not discharge its work health and safety duty if workers are permitted, even informally, to perform that task themselves without adequate training, supervision, or enforcement of the policy.
- Where an employee or contractor had previously carried out a dangerous task without the company's objection, a court may treat that as evidence of a systemic failure rather than an isolated incident, which is relevant to objective seriousness.
- Under the Work Health and Safety Act 2011 (NSW), an early guilty plea to a category 2 offence can attract a 25% reduction in penalty, consistent with principles applied in criminal sentencing more broadly.
- The District Court accepted that a company's post-incident financial deterioration, including losses directly caused by the incident and ongoing inability to trade profitably, is a relevant consideration when fixing a penalty, even where the defendant does not formally submit it cannot pay the fine at all.
- Both the failure to train workers in a specific high-risk task and the failure to maintain adequate on-site supervision by a competent person were identified as distinct and independently significant breaches of the duty to ensure health and safety so far as is reasonably practicable.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), Part 3.1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465