Citation: SafeWork NSW v Craig Arthur Pty Ltd [2023] NSWDC 218
Court: District Court of New South Wales
Date: 23 June 2023
Judge(s): Scotting DCJ
Background
Craig Arthur Pty Ltd was a South Australian transport and logistics company engaged to deliver fire services pipes to two Sydney construction sites on 16 September 2019. The company provided a B-double truck and engaged an experienced interstate driver to carry out the deliveries. One delivery was destined for a warehouse construction project at Moorebank Logistics Park, where Hansen Yuncken Pty Ltd was the principal contractor and Force Fire & Safety Pty Ltd was a subcontractor responsible for fire services installation.
During the unloading of pipes at Moorebank, the driver was fatally struck by two 250NB diameter pipes (estimated combined weight of approximately 380 kg) that fell from the trailer. The driver had a history of entering exclusion zones during unloading at the earlier Eastern Creek delivery that morning, and the site lacked a traffic controller at the gate where he arrived.
SafeWork NSW prosecuted Craig Arthur Pty Ltd for failing to consult, co-operate, and co-ordinate activities with other duty holders under the Work Health and Safety Act 2011. Notably, the company was not charged with the primary duty of care offence under section 19(1) of that Act.
Legal Issues
- Whether Craig Arthur Pty Ltd breached its duty under section 46 of the Work Health and Safety Act 2011 by failing to consult, co-operate, and co-ordinate activities with the other persons who had duties in relation to the same matter
- The appropriate sentence, having regard to the objective seriousness of the offence, aggravating and mitigating factors, capacity to pay a fine, and the principles of deterrence
- The appropriate discount for a guilty plea and co-operation with the SafeWork investigation
Decision
Craig Arthur Pty Ltd pleaded guilty to the section 46 offence. The court proceeded to sentencing and assessed the objective seriousness of the offence. The company had obligations to consult, co-operate, and co-ordinate with Hansen Yuncken, Force Fire, and MFD Linehaul, each of whom also held duties in relation to the delivery and unloading activities. The court found the offending placed it in the low-to-moderate range of objective seriousness, given that the duty breached was the consultation obligation rather than the primary duty of care.
On aggravating factors, the court noted that Craig Arthur had not implemented adequate procedures to ensure its driver understood site safety requirements, and that there had been warning signs about the driver's behaviour at the Eastern Creek delivery earlier that morning. However, the court was careful to observe that it was not deciding whether the driver's death was caused by the company's failure, given the nature of the charge.
Several mitigating factors reduced the penalty. The company had no significant prior convictions relevant to this type of offending, had taken meaningful steps to improve its safety systems after the incident, and the owner's remorse was accepted as genuine. The company's owner had assisted the driver's family following the death. The court also noted the company's co-operation with SafeWork's investigation.
The court assessed a base fine of $60,000, which it reduced by 25% to reflect the utilitarian value of the guilty plea, arriving at a final fine of $45,000. The maximum penalty for the offence was $100,000.
Orders Made
- Craig Arthur Pty Ltd convicted of the offence under section 46 of the Work Health and Safety Act 2011
- Fine of $45,000 imposed (reduced from a base of $60,000 by a 25% guilty plea discount)
- The offender ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW)
Key Takeaways
- A breach of the consultation, co-operation, and co-ordination duty under section 46 of the Work Health and Safety Act 2011 is a distinct offence from the primary duty of care under section 19(1); a conviction for the former does not require the court to find that the defendant's failures caused the worker's death or injury.
- The District Court placed this section 46 offence in the low-to-moderate range of objective seriousness, reflecting that the duty is procedural in character compared to a direct duty of care, even where the surrounding circumstances involved a fatality.
- Genuine remorse, post-incident safety improvements, co-operation with the regulator, and an absence of a relevant prior record each operated as mitigating factors in reducing the penalty from the maximum.
- A 25% discount applied to the fine to reflect the utilitarian value of the guilty plea, consistent with established New South Wales sentencing principles.
- Under section 122(2) of the Fines Act 1996, the court directed that half the fine be paid to the prosecuting regulator, a mechanism worth noting in WHS prosecutions brought by SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1