Citation: SafeWork NSW v Visy Board Pty Limited [2024] NSWDC 95
Court: District Court of New South Wales
Date: 5 April 2024
Judge: Russell SC DCJ
Background
Visy Board Pty Limited operated a corrugated cardboard manufacturing facility at Smithfield. The process involved a large machine called a Corrugator, with sheets of cardboard moved along outfeed conveyors before being collected by a powered mobile vehicle called a Trolley Car, which ran along a rail in the floor.
On 25 June 2020, a machine servicer with approximately 35 years' experience with the company was operating a corrugator outfeed conveyor during a relief shift. While standing near the end of the conveyor, he was crushed between the Trolley Car and the conveyor. The incident caused serious injuries to his left foot, and he subsequently had his left leg amputated below the knee.
The regulator, SafeWork NSW, prosecuted Visy under the Work Health and Safety Act 2011 (NSW). Visy pleaded guilty to failing to comply with its duty as a person conducting a business or undertaking (PCBU) and thereby exposing the worker to a risk of death or serious injury.
Legal Issues
- What was the appropriate sentence for a PCBU that pleaded guilty to a Category 2 WHS offence under s 32 of the Work Health and Safety Act 2011 (NSW)?
- What discount applied to reflect the early guilty plea?
- What were the objective seriousness and mitigating and aggravating factors relevant to penalty?
- What costs order was appropriate?
Decision
The court found that Visy had failed to take reasonably practicable measures to address a well-known crush hazard at the interface between the Trolley Car and the corrugator outfeed conveyors. The gap between the two was only 40mm, creating an obvious pinch point. Visy's risk assessment and safe work procedures were inadequate, there was no physical barrier separating workers from the path of the Trolley Car, and no floor markings or designated exclusion zones were in place.
The court assessed the objective seriousness of the offence at a moderate level, noting multiple available control measures that Visy had failed to implement. The maximum penalty for the offence was $1,731,500. The court determined that a fine of $500,000 was appropriate before any discount.
A 25% reduction was applied to reflect the early guilty plea. The worker's victim impact statement was also before the court, describing profound physical and psychological harm, including depression, social humiliation, and the lasting impact on his relationship with his young grandchild.
The court reduced the fine to $375,000 and ordered that 50% of it be paid to the prosecutor under the Fines Act 1996 (NSW). Agreed prosecution costs of $55,000 were also ordered.
Orders Made
- Visy Board Pty Limited convicted on 27 March 2024.
- Visy Board Pty Limited ordered to pay a fine of $375,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- Visy Board Pty Limited ordered to pay the prosecutor's agreed costs of $55,000.
Key Takeaways
- The District Court confirmed that the absence of physical barriers, inadequate risk assessments, and inadequate safe work procedures across multiple control measures are relevant to both the establishment of liability and the assessment of objective seriousness in WHS prosecutions.
- A 25% discount on penalty applied to reflect an early guilty plea, reducing the fine from $500,000 to $375,000 against a statutory maximum of $1,731,500, placing the penalty at roughly 22% of the maximum after discount.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half the fine be paid to the prosecuting regulator, a mechanism available in WHS proceedings in New South Wales.
- Victim impact material was before the court and formed part of the sentencing record, illustrating the long-term psychological, social, and physical consequences suffered by the injured worker following a traumatic amputation.
- Where readily available control measures such as floor markings, physical gates, exclusion zones, improved sensors, and radio communication systems existed but were not implemented, courts are likely to treat the failure as a significant factor in assessing objective seriousness.
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, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- 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
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432