Citation: SafeWork NSW v Force Fire & Safety Pty Ltd [2023] NSWDC 217
Court: District Court of New South Wales
Date: 23 June 2023
Judge(s): Scotting DCJ
Background
Force Fire & Safety Pty Ltd was a subcontractor engaged to design, supply, and install fire safety systems at a large construction site at Moorebank Logistics Park in Sydney. The principal contractor, Hansen Yuncken, was responsible for the overall site. Force Fire's site supervisor, Mr Rosic, was responsible for receiving a delivery of fire sprinkler and services pipes on 16 September 2019.
The delivery was made by an experienced interstate truck driver, Christopher Detroit, who was employed by a South Australian transport company. During the unloading process, Mr Rosic operated a telehandler (a type of forklift with an extendable arm) to move bundled pipes from the trailer. While Mr Detroit was on the passenger side of the truck, and Mr Rosic was on the driver's side unloading a third bundle of pipes, the load fell from the passenger side and struck Mr Detroit. He was rendered unconscious. He died in hospital on 2 October 2019.
Force Fire was prosecuted by SafeWork NSW for failing to comply with its health and safety duty under the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Detroit to a risk of death or serious injury. Force Fire pleaded guilty to the charge.
Legal Issues
- Whether Force Fire failed to discharge its duty as a person conducting a business or undertaking (PCBU) under s 19(2) of the Work Health and Safety Act 2011 (NSW), thereby committing an offence under s 32 of that Act
- The objective seriousness of the offence for sentencing purposes
- What aggravating and mitigating factors applied
- The appropriate penalty, including the discount for the guilty plea
Decision
Force Fire admitted that its employee Mr Rosic, as the person responsible for unloading, was required to implement a system that included an 8-metre exclusion zone around the unloading area. That zone would have prevented anyone from standing on the opposite side of the trailer while pipes were being moved. Mr Rosic did not enforce this exclusion zone, and no system existed to prevent Mr Detroit from returning to the passenger side of the truck without Mr Rosic's knowledge.
The court assessed the objective seriousness of the offence as falling in the low to mid range. The risk was foreseeable and the measures needed to address it were straightforward, but there were some factors moderating the seriousness. Notably, the failure was attributable to the conduct of a single supervisor in the field rather than a systemic or deliberate disregard for safety by the company at a management level. The death of Mr Detroit was treated as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
Several mitigating factors reduced the sentence. Force Fire had no prior convictions, having operated since 2005. The court was satisfied this was one of the rare cases in which re-offending was genuinely unlikely, based on the company's response to the incident. Force Fire implemented remedial steps demonstrating excellent rehabilitation prospects. The director, Mr Richetti, personally expressed remorse, facilitated a site visit for Mr Detroit's family, and apologised to them in person. Force Fire also cooperated with SafeWork's investigation and had a record as a good corporate citizen through charitable contributions.
A 25% discount applied to the fine to reflect the utilitarian value of the guilty plea, consistent with the principles established in R v Thomson & Houlton and R v Borkowski.
Orders Made
- Force Fire & Safety Pty Ltd convicted of an offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- Fine of $400,000 imposed, reduced by 25% for the guilty plea to $300,000
- Force Fire to pay the prosecutor's costs as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine directed to be paid to the prosecutor (SafeWork NSW)
Key Takeaways
- Under s 32 of the Work Health and Safety Act 2011 (NSW), a PCBU can be convicted for failing to comply with its health and safety duty where that failure exposes a person to a risk of death or serious injury, even where the failure relates to the conduct of an individual supervisor rather than a broader management-level failure.
- The District Court placed this offence in the low to mid range of objective seriousness, reflecting that the required safety measures were simple and foreseeable, while also recognising that the company's culpability was not systemic.
- Death of a worker as a consequence of a WHS breach constitutes a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the court confirmed it does not require a separate analysis of causation beyond the facts admitted.
- Genuine post-incident remediation, personal expressions of remorse directly to the victim's family, and cooperation with the regulator's investigation can collectively support a finding that re-offending is unlikely, an outcome the court described as rare in this jurisdiction.
- A 25% discount on the financial penalty was applied for the early guilty plea, with the court drawing on R v Thomson & Houlton and R v Borkowski in confirming that a plea reflects both utilitarian value to the justice system and evidence of remorse.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412