Citation: SafeWork NSW v Enviro Pallets Pty Ltd [2024] NSWDC 59
Court: District Court of New South Wales
Date: 8 March 2024
Judge: Russell SC DCJ
Background
Enviro Pallets Pty Ltd operated a wooden pallet manufacturing factory at St Marys, NSW, employing approximately six workers. On 11 September 2019, the company's 33-year-old Factory Manager, Mr Mathew Spann, was lying beneath the bed conveyor of a Viking Turbo 505 pallet making machine, investigating a sensor fault. At his direction, a fellow worker activated the machine's manual "jog" function, causing a rotating metal arm of the pallet turner to strike Mr Spann's head and trap it against the machine frame. Mr Spann died at the scene.
Enviro pleaded guilty to failing to comply with its duty as a person carrying on a business or undertaking (PCBU) under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Spann to a risk of death or serious injury, contrary to s 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
The agreed facts revealed that the machine had no guarding or interlocking mechanism to prevent access to the space beneath the conveyor while the machine was energised. Notably, SafeWork NSW had attended the premises in June 2017 and issued improvement notices requiring Enviro to address the very risks that ultimately caused Mr Spann's death.
Legal Issues
- The appropriate level of objective seriousness of the offence under the WHS Act
- What mitigating and aggravating factors applied when fixing the penalty
- The appropriate discount for an early guilty plea
- Whether the defendant's size and financial capacity should reduce the fine
- The appropriate final penalty within the statutory maximum of $1,500,000
Decision
The court found the offence was objectively serious. The risk of death or serious injury from unguarded moving machinery parts during maintenance was foreseeable and well known. The reasonably practicable measures Enviro failed to take were straightforward: conducting a risk assessment, installing guarding or interlocking, fitting a lockable electrical isolator, implementing a lock-out/tag-out procedure, and providing relevant training.
Aggravating circumstances included the fact that SafeWork NSW had issued improvement notices in June 2017 specifically requiring Enviro to address access to the dangerous parts of the machine. Despite this, no adequate steps were taken before Mr Spann's death more than two years later. The court also noted that Mr Spann had been observed on prior occasions going underneath the machine while it was not de-energised, and that the practice of working under the machine while it was operational was known within the business.
In mitigation, the court accepted that Enviro had cooperated fully with the prosecution, providing documents promptly. The court also accepted the guilty plea and applied a 25% discount to the base penalty. The court took into account that Enviro was a small business when considering specific deterrence, noting the principle from Unity Pty Limited v SafeWork NSW that a fine crippling to a small business may have negligible impact on a large corporation. No submission on capacity to pay was made by the defendant.
The court set the appropriate fine at $400,000 before the plea discount, then reduced it to $300,000 to reflect the early guilty plea. Under s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor, SafeWork NSW.
Orders Made
- Enviro Pallets Pty Ltd convicted of the WHS offence
- Enviro Pallets Pty Ltd fined $300,000 (reduced from a base of $400,000 by a 25% early plea discount)
- 50% of the fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW)
- Enviro Pallets Pty Ltd ordered to pay the prosecutor's costs
Key Takeaways
- The District Court treated the prior issuance of improvement notices by SafeWork NSW as a significant aggravating factor: the defendant had been placed on notice about the specific risk that later caused the fatality and failed to remedy it.
- A 25% discount for an early guilty plea was applied under ss 22 and 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), consistent with established sentencing principle.
- Under s 6 of the Fines Act 1996 (NSW) and the principle confirmed in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, the size and financial scope of the offending business is relevant to specific deterrence, though not necessarily determinative of the final penalty.
- Where a defendant seeks a reduction in fine on the basis of limited capacity to pay, the evidentiary onus rests on the defendant to demonstrate that the court should exercise its discretion accordingly.
- Reasonably practicable WHS measures such as lock-out/tag-out procedures, machine guarding, and formal risk assessments for maintenance tasks were treated as basic obligations, the absence of which contributed materially to the objective seriousness of the offence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432