Citation: SafeWork NSW v Inghams Enterprises Pty Limited [2023] NSWDC 580
Court: District Court of New South Wales
Date: 21 December 2023
Judge: Strathdee DCJ
Background
The defendant, a large poultry and turkey processing company, operated a processing plant at Tahmoor, New South Wales. A process worker had been employed at the plant since 2012 and worked primarily in refrigerated rooms known as "ice bunkers," where workers used shovels to direct crushed ice into an auger system running beneath metal grates in the floor.
On 19 February 2020, the worker was alone in Ice Bunker 1 when a grate dislodged. His right leg fell into the rotating auger, followed by his left leg. Emergency services attended but could not free his left leg, and it was amputated at the scene up to the top of the knee. He passed in and out of consciousness until help arrived.
A prior incident in January 2019, in which falling ice had knocked the same worker down and caused injuries to his arm, palm, and neck, had prompted the defendant to require two workers to be present in the ice bunker before 5:45am. That requirement had been abandoned before the 2020 incident, and no adequate line-of-sight monitoring or check-in system replaced it.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking (PCBU), failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure workers' health and safety so far as was reasonably practicable.
- The appropriate sentence, including the objective seriousness of the offending, applicable aggravating and mitigating factors, the correct discount for the guilty plea, and the resulting fine.
- Whether the defendant should pay the prosecutor's costs, and in what amount.
Decision
The defendant pleaded guilty to the offence under s 32 of the Work Health and Safety Act 2011 (NSW), which criminalises a PCBU's failure to comply with a health and safety duty where that failure exposes workers to a risk of death or serious injury. The court's task was therefore confined to sentencing.
Expert evidence from Emeritus Professor David Young established that the use of mixed stainless steel and aluminium grates, combined with exposure to chlorinated ice melt, accelerated corrosion through a process known as galvanic corrosion. The Nyloc nuts securing the grates loosened over time and could only be identified as loose by touch, not by sight. The defendant had no inspection or maintenance procedures in place for those fixings, and the grates in the back section of the bunker were routinely obscured by ice and therefore difficult to monitor.
The court identified several aggravating features: the defendant had foresight of the risk of a lone worker in the ice bunker following the 2019 incident; it had implemented a two-person requirement but then abandoned it without an adequate alternative; it had no grate inspection regime despite the corrosive environment; and the harm caused was of the most serious kind, resulting in traumatic amputation. Mitigating factors included the defendant's co-operation with investigators, its entry into an Enforceable Undertaking process, remediation steps taken after the incident, evidence of genuine remorse, and its lack of prior relevant offences.
On the question of the guilty plea discount, the prosecutor argued for 10 to 15 percent on the basis that the plea came late. The court accepted that the Enforceable Undertaking process can be protracted, and that the defendant had entered its guilty plea immediately upon the Amended Summons being filed. A discount of 25 percent was allowed for the utilitarian value of the plea. The court assessed a notional pre-discount fine of $800,000, reduced to $600,000 on account of a strong subjective case, and then further reduced to $450,000 after applying the 25 percent plea discount.
Orders Made
- The defendant is convicted.
- A fine of $450,000 is imposed (reflecting a pre-discount figure of $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 (SafeWork NSW).
- The defendant is to pay the prosecutor's costs in the agreed sum of $51,000.
Key Takeaways
- A PCBU's awareness of a specific risk, evidenced here by a prior incident and a safety measure introduced in response, can operate as a significant aggravating factor if that measure is later abandoned without an adequate substitute.
- Under the Work Health and Safety Act 2011 (NSW), a category 2 offence (failure to comply with a health and safety duty exposing workers to risk of death or serious injury) carries a maximum penalty that the court calibrated against, assessing this matter at a moderately high level of objective seriousness.
- The District Court allowed a 25% plea discount where the defendant had engaged in an Enforceable Undertaking process before the Amended Summons was filed, and then entered the guilty plea immediately upon that summons being filed, distinguishing this from a simple late plea.
- Costs against a convicted defendant in WHS prosecutions are the normal outcome following a successful prosecution; the court confirmed they are compensatory, not punitive, and may be taken into account when fixing the monetary penalty.
- A strong subjective case, including co-operation with investigators, genuine remediation, remorse, and no prior offences, resulted in the notional fine being reduced from $800,000 to $600,000 before the plea discount was applied, demonstrating the practical weight those factors can carry in WHS sentencing.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Latoudis v Casey (1990) 170 CLR 534
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Thomson & Houlton (2000) 49 NSWLR 383
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Veen v R (No 2) (1988) 164 CLR 465