Citation: SafeWork NSW v Buddco Pty Limited (No. 2) [2023] NSWDC 128
Court: District Court of New South Wales
Date: 2 May 2023
Judge(s): Russell SC DCJ
Background
Buddco Pty Limited was a small engineering services company that had contracted to provide services to an ink manufacturer, DIC Australia Pty Ltd, at a site in Auburn, NSW. As part of those services, Buddco engaged subcontractors to perform confined space cleaning work inside ink holding tanks. In December 2017, Buddco engaged Mr Craig Tanner to clean the inside of one of those tanks.
On 7 December 2017, Mr Tanner entered the ink holding tank while the anchor blade inside the tank had not been electrically isolated. The blade activated while he was inside, trapping him between the blade and the side of the tank. He sustained fatal injuries. Other workers, including Mr Yatin Mehta, entered the tank to assist Mr Tanner and were themselves injured.
In the primary judgment delivered on 14 November 2022 (SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549), the court found Buddco guilty of failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury contrary to s 32 of that Act. This second judgment addressed sentencing, costs, and related orders.
Legal Issues
- What penalty was appropriate for Buddco's WHS offence, having regard to objective seriousness, mitigating and aggravating factors, and the purposes of sentencing?
- What weight should be given to Buddco's financial position and its capacity to pay a fine?
- Whether a victim impact statement from the deceased worker's widow should be received and taken into account on sentencing.
- Whether Buddco should be ordered to pay the prosecutor's costs.
Decision
The court identified a range of specific failings that constituted Buddco's breach. These included failing to ensure the ink tank was de-energised and isolated from all energy sources before work commenced, failing to request that an interlocking device be installed on the tank hatch, failing to develop and enforce a safe work procedure for the confined space task, and failing to provide adequate instructions and supervision to workers, including requirements for job safety analyses and confined space entry permits.
On sentencing, the court weighed both objective and subjective factors. Buddco had implemented a range of WHS systems prior to the incident, employed a WHS manager, and had previously regarded Mr Tanner as a careful and competent subcontractor. These matters were considered alongside the gravity of the outcome: a worker died, and others were injured.
Buddco's financial position was the subject of expert accounting evidence. The court received evidence that Buddco had been in financial decline since losing its primary client, had required repeated loans to meet its liabilities, and faced likely insolvency and winding up. The court took this capacity-to-pay evidence into account in fixing the penalty.
The court received and considered a victim impact statement from Ms Rachel Tanner, the deceased's widow, who described the profound grief, financial burden, and lasting trauma suffered by herself and the couple's three sons. The statement was accepted pursuant to the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), with the prosecutor having applied for it to be taken into account and the court finding it appropriate to do so.
Orders Made
- Buddco Pty Limited was convicted on 26 April 2023.
- Buddco Pty Limited is ordered to pay a fine of $600,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Buddco Pty Limited is ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court imposed a fine of $600,000 (against a maximum of $1,500,000) on a small engineering contractor convicted of a Category 2 WHS offence following a worker's death inside a confined space, reflecting both the seriousness of the breach and the defendant's limited financial capacity.
- A corporation's financial position, including evidence of likely insolvency, is a relevant consideration in fixing the quantum of a WHS penalty, even where the offending involved serious consequences.
- Under ss 28 and 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW), a victim impact statement from a family victim of a workplace fatality may be taken into account at sentencing, on the basis that harm to the family is an aspect of harm done to the community, provided the prosecutor applies for it to be received and the court considers it appropriate.
- Multiple concurrent WHS failings were identified: absence of energy isolation procedures, no interlocking device, inadequate safe work procedures for confined space entry, and insufficient instructions and supervision. Each was treated as a reasonably practicable measure Buddco had failed to take.
- Where a WHS fine is imposed, s 122(2) of the Fines Act 1996 (NSW) permits the court to direct that a portion of the fine be paid to the prosecutor, as occurred here with 50% directed to SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 16, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549 (primary judgment)
- SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432