Citation: SafeWork NSW v Scott's Refrigerated Logistics Pty Ltd [2024] NSWDC 86
Court: District Court of New South Wales
Date: 22 March 2024
Judge: Strathdee DCJ
Background
Scott's Refrigerated Logistics Pty Ltd (SRL) was part of a national logistics group conducting temperature-controlled freight transport across Australia. As part of its operations, SRL and associated entities required truck drivers to conduct "changeovers" at designated roadside locations, where drivers would uncouple and recouple trailers before continuing their routes.
One such location was a stretch of road adjacent to an out-of-service BP service station at Clybucca on Macleay Valley Way. When the service station closed in around May 2016, workers began conducting changeovers on the road shoulder alongside the former site, which sat on a 100 km/h road. SRL was aware of this practice and continued directing workers to use that location, with approximately 140 changeovers occurring there each week.
In the early hours of 6 July 2021, driver Darren Bowden walked into the northbound lane during a changeover and was struck by another truck travelling at around 74 to 75 km/h. He died as a result of his injuries. SafeWork NSW prosecuted SRL under the Work Health and Safety Act 2011 (NSW) for failing to ensure the health and safety of its workers so far as was reasonably practicable.
Legal Issues
- Whether SRL, as a person conducting a business or undertaking (PCBU), breached its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure worker health and safety so far as reasonably practicable
- Whether that failure exposed workers to a risk of death or serious injury, thereby constituting a Category 2 offence under s 32 of the WHS Act
- The appropriate penalty, including the weight to be given to aggravating and mitigating factors, where the defendant company was in liquidation and did not appear
Decision
The court proceeded as an ex parte hearing (that is, without the defendant present) under s 250 of the Criminal Procedure Act 1986 (NSW). SRL had been placed into external administration in February 2023 and a liquidator was appointed shortly after. The liquidator's representatives confirmed they would not take an active role, and the matter was treated as a not-guilty plea, requiring the prosecution to prove the offence beyond reasonable doubt.
Strathdee DCJ found all elements of the s 32 offence established. The Clybucca Changeover Site constituted a workplace under the WHS Act. SRL owed a duty to workers conducting changeovers there, and its failure to take adequate measures to manage the risk of workers being struck by passing traffic exposed those workers, including Mr Bowden, to a risk of death or serious injury. The risk materialised on 6 July 2021 when Mr Bowden was killed.
On penalty, the court considered the gravity of the offence significant. The risk was foreseeable, the changeover site was plainly dangerous given the 100 km/h speed limit, the failure was ongoing over an extended period, and the risk ultimately resulted in a worker's death. The court took into account victim impact material from Mr Bowden's partner and statements from other drivers who witnessed or were affected by the incident. The absence of prior WHS convictions was treated as a mitigating factor, as was some evidence of post-incident remedial steps.
Because SRL was in liquidation and did not appear, little mitigating material was placed before the court. The court noted it had taken into account the defendant's liability for prosecution costs when setting the financial penalty, and did not separately address capacity to pay given the absence of any application for relief.
Orders Made
- SRL is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- SRL is to pay a fine of $800,000
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to SafeWork NSW as prosecutor
- SRL is to pay the prosecutor's costs, as agreed or assessed
Key Takeaways
- A PCBU's duty under s 19(1) of the WHS Act extends to workplaces that are not formally owned or controlled by the duty-holder, including informal roadside changeover sites that the business directs its workers to use.
- Conviction under s 32 of the WHS Act does not require a worker to have actually suffered injury; it is sufficient that the failure to comply with the safety duty exposed workers to a risk of death or serious injury. Where the risk does materialise, this significantly aggravates the penalty.
- The District Court confirmed that proceedings under the WHS Act can proceed ex parte against a defendant in liquidation, with the court treating the matter as a not-guilty plea and requiring proof beyond reasonable doubt, pursuant to ss 246 and 250 of the Criminal Procedure Act 1986 (NSW).
- Where a defendant does not appear and no mitigating material is placed before the court, the sentencing judge has limited basis to reduce the penalty, and the fine will largely reflect the objective seriousness of the offence.
- Costs orders in successful WHS prosecutions are compensatory rather than punitive, and the court may take a defendant's costs liability into account when calibrating the size of any fine.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Criminal Procedure Act 1986 (NSW), ss 246, 250, 257B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(h), 27(2)(a)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Latoudis v Casey (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Haynes v CI & D Manufacturing (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455