Citation: SafeWork NSW v The Salvation Army (NSW) Property Trust [2024] NSWDC 608
Court: District Court of New South Wales
Date: 20 December 2024
Judge: Strathdee DCJ
Background
The defendant, The Salvation Army (New South Wales) Property Trust, operated Weeroona Aged Care Centre at Bass Hill in Sydney's south-west. On 27 February 2021, staff were using an Oxford Presence Patient Lifter to transfer a resident, Kenneth Redcliffe, from a bed bath to a chair in his room. Mr Redcliffe had been in palliative care at the facility for many years following a brain injury and had recently developed dementia, leaving him reliant on a hoist for mobility assistance.
During the transfer, while Mr Redcliffe was suspended in the sling, the spreader bar detached from the lifter's boom arm and he fell approximately one metre onto the floor. The spreader bar then fell on top of him. He suffered pelvic fractures, a laceration to the nose, and an abdominal injury. He was hospitalised and died the following day.
SafeWork NSW prosecuted the Trust for failing to comply with its work health and safety duty under s 19(2) of the Work Health and Safety Act 2011 (WHS Act), which had exposed residents who required the use of a full hoist patient lifter, including Mr Redcliffe, to a risk of death or serious injury. The Trust pleaded guilty on 9 July 2024 to a Category 2 offence under s 32 of the WHS Act.
Legal Issues
- What was the appropriate objective seriousness of the offence?
- What weight should be given to the defendant's pre-incident safety systems in mitigation?
- What effect did the COVID-19 pandemic have on the defendant's culpability?
- What discount applied for the guilty plea's utilitarian value?
- What was the appropriate fine, having regard to the maximum penalty of $1,766,130?
- Whether the prosecutor's costs should be awarded, and in what amount?
Decision
Strathdee DCJ accepted that the Trust had not been indifferent to safety. Before the incident, the facility had personalised care plans for residents, written safe work procedures, mandatory induction and buddy training, ongoing competency assessments, and active WHS committee structures. Critically, however, the Court found that the safe work procedure specifically relating to the use of patient lifters was inadequate, and the inspection and maintenance regime for the lifters was deficient. The Trust itself acknowledged this.
The Court placed the offence in the low-to-moderate range of objective seriousness. The risk was foreseeable and real, and a resident died as a result. The Court received a victim impact statement from Mr Redcliffe's son, Anthony, and acknowledged the significant suffering caused to him. The COVID-19 pandemic, which had created genuine difficulties for aged care providers, was accepted as a relevant contextual factor, with the Court finding the Trust had maintained its safety practices as best it could under difficult and evolving public health circumstances.
In mitigation, the Court accepted that the Trust had demonstrated genuine remorse and contrition, had co-operated with SafeWork NSW's investigation, had taken immediate remedial steps after the incident (including inspecting and rectifying all lifters at the facility), and had very good prospects of rehabilitation. These factors weighed in the defendant's favour alongside its status as a not-for-profit organisation making a substantial contribution to the community.
The Court applied a 25% discount to the fine to reflect the utilitarian value of the early guilty plea, in accordance with the principles in R v Thomson; R v Houlton and ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999. Costs were awarded in favour of the prosecutor as the normal rule following a successful prosecution, a position the Trust accepted.
Orders Made
- The Salvation Army (New South Wales) Property Trust is convicted of the offence.
- A fine of $300,000 is imposed (reduced from a pre-discount figure of $400,000 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 $60,000 plus GST.
Key Takeaways
- A Category 2 WHS Act offence can be made out against an aged care operator where a deficient maintenance and inspection regime for patient-handling equipment exposes residents to a risk of death or serious injury, even where broader safety systems existed.
- The existence of documented safety systems prior to an incident does not preclude a finding of breach, but the District Court treated those systems as a significant mitigating factor in assessing objective seriousness and culpability.
- Where a defendant had inadequate procedures for a specific piece of equipment, that particular gap in the safety regime was the central deficiency, regardless of the wider compliance framework in place.
- Operational context matters at sentencing: the Court accepted the COVID-19 pandemic as a circumstance bearing on the defendant's culpability, finding that staff had been working under exceptional and largely unprecedented pressures in an aged care environment.
- A 25% discount for the utilitarian value of a guilty plea applied in this matter, consistent with established New South Wales sentencing principles, and the prosecutor's costs followed the event as the default position in a successful WHS prosecution.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122
- The Salvation Army (New South Wales) Property Trust Act 1929 (NSW)
- Aged Care Act 1997 (NSW)
Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464