Citation: SafeWork NSW v Bay Timber Manufacturing Pty Ltd [2024] NSWDC 585
Court: District Court of NSW
Date: 12 December 2024
Judge: Russell SC DCJ
Background
Bay Timber Manufacturing Pty Ltd operates a business at Beresfield, NSW, manufacturing steel and timber building frames. The company employed approximately 225 workers as at December 2021, including Ms Scudds, a 17-year-old labourer who had been with Bay Timber for less than two months.
On 6 December 2021, Ms Scudds was operating an overhead travelling crane to load a 950-kilogram steel coil onto a de-coiler machine. After lowering the coil to the ground to reposition the crane's C-hook, the coil toppled and fell onto her leg. She suffered a fractured right tibia, abrasions, punctures, and ongoing nerve and ligament damage that has left her with a permanent limp, chronic pain, and post-traumatic stress disorder.
SafeWork NSW prosecuted Bay Timber under the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty of care as a person conducting a business, thereby exposing workers to a risk of death or serious injury. Bay Timber pleaded guilty.
Legal Issues
- The appropriate penalty for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), having regard to the objective seriousness of the offending
- The weight to be given to mitigating factors, including an early guilty plea and the defendant's cooperation
- The weight to be given to aggravating factors, including that the victim was a vulnerable minor
- The defendant's capacity to pay an appropriate fine
- Whether prosecution costs should be ordered
Decision
The court found that Bay Timber failed in multiple respects to meet its duty to ensure, so far as reasonably practicable, the health and safety of its workers. The failures included: not isolating or locking out the crane's remote control to prevent unauthorised access; not requiring appropriate lifting equipment (a flat web sling) for steel coils; failing to verify coil orientation before loading; and failing to document or enforce a prohibition on workers under 18 using the crane. Bay Timber also provided inadequate training, instruction, and supervision for the crane loading task.
The court assessed the objective seriousness of the offending as substantial. A relevant aggravating factor was that Ms Scudds was a minor, making her a vulnerable person within the meaning of the sentencing legislation. The risk of a falling coil of that size causing death or catastrophic injury was self-evident, and the measures needed to eliminate or minimise that risk were straightforward and practicable.
In mitigation, the court accepted the benefit of Bay Timber's early guilty plea, its cooperation with SafeWork's investigation, its engagement of an external safety consultant prior to the incident, and the remediation steps taken after the incident. The court applied a 25 percent discount to the fine to reflect the early plea.
The maximum penalty for the offence was $1,782,579. The court determined the appropriate base fine was $400,000, reduced to $300,000 after the guilty plea discount. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine was directed to be paid to SafeWork NSW as prosecutor.
Orders Made
- Bay Timber Manufacturing Pty Ltd convicted on 28 November 2024
- Bay Timber Manufacturing Pty Ltd ordered to pay a fine of $300,000
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW)
- Bay Timber Manufacturing Pty Ltd ordered to pay the prosecutor's costs
Key Takeaways
- The District Court confirmed that the vulnerability of a victim as a minor is an aggravating factor in Work Health and Safety Act sentencing, capable of increasing the appropriate penalty.
- A 25 percent discount applied to the base fine of $400,000 in recognition of an early guilty plea, producing a final penalty of $300,000 out of a maximum of $1,782,579.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half the fine be paid to the prosecuting regulator, which is a standard mechanism available in WHS prosecutions.
- Failure to implement readily available and straightforward control measures, including crane isolation procedures, appropriate lifting equipment, and adequate supervision of a minor, formed the core of the court's findings on objective seriousness.
- The existence of a Job Safety Analysis that identified crush injuries as a hazard did not shield Bay Timber from conviction, where the documented controls were not adequately implemented or enforced in practice.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cl 203, Pt 3.1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E, Pt 3 Div 2
- 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; Attorney General for NSW 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