Citation: SafeWork NSW v Bidfood NSW Pty Limited [2023] NSWDC 378
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Strathdee DCJ
Background
The defendant, Bidfood NSW Pty Limited, operated a food distribution warehouse in Port Macquarie. On 27 January 2021, an unlicensed employee operated a forklift with a non-functional reversing beeper, defective reverse lights, and an intermittent horn. The forklift reversed through a set of PVC strip curtains into a receiving area and struck a worker, Mr Seaborn, causing serious injuries. Mr Seaborn had been employed for only twelve days at the time.
SafeWork NSW prosecuted the defendant under the Work Health and Safety Act 2011 (NSW) ("WHS Act"). The prosecution alleged the defendant, as a person conducting a business or undertaking, failed to ensure the health and safety of other persons was not put at risk from work carried out in its business, and that failure exposed three workers to a risk of death or serious injury.
The defendant pleaded guilty on 8 May 2023. The case came before the District Court for sentencing.
Legal Issues
- Whether the defendant failed to comply with its primary health and safety duty under s 19(1) of the WHS Act, contrary to s 32 of that Act
- The objective seriousness of the offence and where it fell within the available range
- What mitigating and aggravating factors applied, including remorse, rehabilitation steps, cooperation with investigators, and the early guilty plea
- The appropriate fine, including the applicable discount for the utilitarian value of the guilty plea
- Whether the defendant should pay the prosecutor's costs, and if so, in what amount
Decision
Strathdee DCJ found that the defendant had committed a serious breach of its duty. Multiple compounding failures underpinned the offence: the unlicensed operator had been permitted to drive the forklift since approximately September 2020; the vehicle had known safety defects for around two months before the incident; the traffic management plan did not adequately address pedestrian and forklift interactions in the receiving area; and workers had received insufficient training. Relevant industry guidance and the defendant's own internal risk documents had identified these very risks.
The Court assessed the objective seriousness of the offence at a moderate level. The risk of serious injury or death from a forklift operating in an area shared by pedestrians, without adequate safety controls, was foreseeable and the risk was well-documented. The Court treated the absence of any physical barriers or clearly defined pedestrian walkways in a confined 15-by-5-metre space as a significant concern.
In mitigation, the Court accepted that the defendant had demonstrated genuine remorse, cooperated fully with SafeWork NSW's investigation, implemented remedial measures after the incident, and had no prior convictions. The defendant's guilty plea was entered at an early stage, and the prosecution conceded that the maximum discount of 25% was available. The Court confirmed that costs payable to the prosecutor are compensatory rather than punitive, and noted it had taken both the prosecutor's costs and the defendant's own costs of the proceedings into account when setting the penalty.
Starting from a base fine of $400,000 (against a maximum of $1,766,130), the Court applied the 25% plea discount to arrive at a final fine of $300,000. The Court also ordered the defendant to pay the agreed prosecutor's costs.
Orders Made
- The defendant is convicted of the offence under s 32 of the WHS Act.
- A fine of $300,000 is imposed (reduced from a base of $400,000 by 25% to reflect 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 defendant is to pay the prosecutor's agreed costs of $44,500 (exclusive of GST).
Key Takeaways
- Under s 32 of the WHS Act, a person conducting a business or undertaking who fails to comply with a health and safety duty, in a way that exposes a person to a risk of death or serious injury, faces a maximum penalty (at the time of this offence) of $1,766,130.
- Where a defendant can demonstrate an early guilty plea, full cooperation with investigators, genuine remorse, and post-incident remediation, the sentencing court may take all of those factors into account in mitigation, with the plea itself attracting up to a 25% utilitarian discount in accordance with principles in R v Thomson and Houlton.
- A court imposing a financial penalty in WHS proceedings is entitled to have regard to both the prosecutor's costs and the defendant's own litigation costs as part of the overall sentencing exercise.
- Costs awarded to a successful prosecutor in WHS proceedings are compensatory in nature, not punitive, following Latoudis v Casey (1990) 170 CLR 534.
- The District Court treated the combination of an unlicensed operator, an unrepaired defective vehicle, inadequate pedestrian segregation, and the existence of prior internal and industry documentation identifying these very risks as significant factors in assessing objective seriousness, even where that seriousness was assessed at a moderate rather than high level.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 81, 82, 214
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Latoudis v Casey (1990) 170 CLR 534
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- Kirk v Industrial Commission of New South Wales [2010] HCA 1