Citation: SafeWork NSW v Integrated Agricultural Developments Pty Ltd [2024] NSWDC 243
Court: District Court of NSW
Date: 27 June 2024
Judge: Russell SC DCJ
Background
Integrated Agricultural Developments Pty Ltd (IAD) operated vineyards in the Central Tablelands region of NSW, providing agricultural services across three properties owned by the company's director and his wife. IAD used labour hire workers sourced through a sole trader labour hire business, LJ Priest, to carry out farmhand duties including vine maintenance and hazard reduction burns.
On 1 June 2021, a labour hire worker employed through LJ Priest was conducting a controlled backburn of blackberry bushes at one of IAD's properties. He rode a quad bike, fitted with a rear spray tank containing approximately 30 litres of diesel, onto the wall of an irrigation dam to monitor the fire. While attempting to reverse at low speed, the bike tipped sidewards, rolled down the dam wall, and trapped the worker beneath it. He suffered a fractured sacral spine and pelvis and was airlifted to hospital, where he was treated for two weeks.
None of IAD's four quad bikes were fitted with operator protective devices (OPDs). Although full-face helmets were available, workers were not required to wear them. IAD had not conducted adequate risk assessments, established quad bike exclusion zones, or coordinated with LJ Priest about workers' training and experience with quad bikes.
Legal Issues
- Whether IAD breached its primary duty of care under s 19 of the Work Health and Safety Act 2011 (NSW) by failing to ensure, so far as reasonably practicable, the health and safety of workers, including the injured worker, contrary to s 32.
- Whether IAD breached its duty under s 46 of the WHS Act to consult, cooperate, and coordinate activities with LJ Priest, a person who shared a duty in relation to the same matter.
- What penalty was appropriate, having regard to objective seriousness, mitigating and aggravating factors, the early guilty plea, general and specific deterrence, and IAD's capacity to pay.
Decision
IAD pleaded guilty to both offences. On the s 19 and s 32 offence, the court assessed the objective seriousness as falling in the low to mid range. The quad bikes lacked OPDs, helmet wearing was not enforced, no adequate risk assessment had been undertaken, no exclusion zones were in place, and workers received no adequate training or instruction on safe quad bike use. The court identified OPD installation and a proper risk assessment as the most critical failures.
On the s 46 offence, IAD had failed to communicate with LJ Priest about workers' competency with quad bikes, had not confirmed that a safe system of work was in place, and had not informed LJ Priest of the requirement to use quad bikes on site. The court treated this as a less serious offence, reflected in the significantly lower maximum penalty.
On penalty, the court declined to reduce the fine on the basis of IAD's financial position. Although IAD's accounts showed accumulated trading losses, the court noted that the business continued to operate, that the fee structure between IAD and the Jarrett family was artificial, and that funding was likely available from related entities. The court applied a 25% reduction to both fines to reflect the early guilty pleas.
Orders Made
Proceeding 2022/387576 (s 19 / s 32 offence):
- IAD convicted
- Fine of $180,000 (reduced from $240,000 by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- IAD to pay the prosecutor's costs
Proceeding 2022/387552 (s 46 offence):
- IAD convicted
- Fine of $15,000 (reduced from $20,000 by 25% for early guilty plea)
- 50% of the fine to be paid to the prosecutor under s 122(2) of the Fines Act 1996 (NSW)
- IAD to pay the prosecutor's costs
Key Takeaways
- The District Court confirmed that a failure to fit OPDs to quad bikes, combined with unenforced helmet requirements, no risk assessment, and no exclusion zones for hazardous terrain, can constitute a breach of the primary WHS duty exposing workers to a risk of death or serious injury.
- Under s 46 of the WHS Act, where two persons hold duties in relation to the same matter, each must consult, cooperate, and coordinate with the other so far as is reasonably practicable. This duty extends to sharing information about workers' competency and confirming that safe systems of work are in place.
- An early guilty plea attracted a 25% discount on the otherwise appropriate fine for both offences, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where a corporate defendant's financial accounts show losses but the business continues to trade, and the fee structure with related parties appears to understate commercial costs, a court may decline to reduce a fine on capacity-to-pay grounds.
- The sentencing court applied the principle that the maximum penalty sets the scale against which objective seriousness is measured, placing the primary offence in the low to mid range of that scale given the nature and circumstances of the risk.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 46
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465