Citation: SafeWork NSW v Big River Group Pty Ltd [2023] NSWDC 499
Court: District Court of New South Wales
Date: 17 November 2023
Judge: Strathdee DCJ
Background
The defendant, a corporation engaged in manufacturing and supplying products for the building and construction industry, operated a factory at Forest Hill, New South Wales. It contracted a transport company to collect and distribute materials from its site, with truck drivers attending regularly for loading and unloading.
On 27 October 2020, two contracted truck drivers were standing near the rear of a truck in the loading zone while a licensed forklift operator employed by the defendant was loading the vehicle. The forklift operator did not see the drivers and reversed the forklift into one of them, running over his left leg. The injured driver sustained rib fractures, a serious degloving injury to his thigh, leg and toes, and fractures to two toes.
Critically, the defendant had already experienced a similar incident in October 2019, when a truck driver was injured after a forklift reversed over his foot. Although the defendant implemented some corrective measures following that earlier incident, including new signage and updated induction procedures, it had not installed ground markings in the loading zone to demarcate safe and exclusion zones, and had not provided any site induction to one of the two drivers present on the day of the 2020 incident.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, failed to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure worker safety so far as reasonably practicable
- What sentence was appropriate having regard to the objective seriousness of the offence, relevant aggravating and mitigating factors, and the principles of general and specific deterrence
- What discount applied to the fine in light of the defendant's plea of guilty
- Whether the defendant should pay the prosecutor's agreed costs
Decision
The defendant was convicted of failing to comply with its health and safety duty under s 19(1) of the WHS Act, with the failure exposing workers to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty at the time of the offence was $1,500,000.
On objective seriousness, the court noted the defendant had been put on clear notice of the risk by the 2019 incident and SafeWork NSW's subsequent inspection report, which had specifically recommended exploring physical barriers. Despite that warning, no ground markings were in place in the loading zone at the time of the 2020 incident, one driver had received no site induction at all, and the defendant's Traffic Management Plan and safe operating procedures lacked adequate controls to keep pedestrians separated from operating mobile plant.
On mitigation, the court accepted several factors in the defendant's favour. These included genuine remorse and contrition, co-operation with SafeWork NSW, steps taken after the incident to improve safety, good prospects of rehabilitation, a low likelihood of reoffending, the defendant's community contributions, and its retention of staff following bushfire-related disruption at the Forest Hill site. The defendant was assessed as a responsible corporate citizen that had fallen short on this occasion.
The court set the base fine at $600,000 and applied a 25% discount for the utilitarian value of the guilty plea, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383. The court also noted that a defendant's liability for prosecution costs and its own legal costs are matters that may be taken into account when fixing the monetary penalty, particularly where there is evidence of limited capacity to pay.
Orders Made
- The defendant is convicted.
- A fine of $450,000 is imposed (being $600,000 reduced by 25% for 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 costs in the agreed sum of $54,248, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A prior similar incident, combined with a specific recommendation from a regulator to improve controls, will weigh heavily in aggravation when a subsequent injury occurs because adequate steps were not taken.
- Under the WHS Act, the absence of ground-level physical demarcation of exclusion zones in a shared forklift and pedestrian loading area, and the failure to induct all workers accessing that area, were found to be significant omissions in an adequate system of work.
- A guilty plea entered to an amended summons attracted the standard 25% utilitarian discount, consistent with the Thomson & Houlton principles, reducing a $600,000 base fine to $450,000.
- Prosecution costs are compensatory rather than punitive, following Latoudis v Casey (1990) 170 CLR 534, and the court may take both prosecution costs and the defendant's own legal costs into account when fixing the quantum of any monetary penalty.
- Mitigating factors such as genuine remorse, post-incident remediation, community contribution, co-operation with the regulator, and low prospects of reoffending can collectively produce a meaningful reduction from the starting-point fine, even where the objective seriousness of the offence is significant.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Latoudis v Casey (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Morrison v Powercoal Pty Limited and Anor (No 3) (2005) 147 IR 111
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632