Citation: [2025] NSWDC 25
Court: District Court of New South Wales
Date: 19 February 2025
Judge(s): Scotting DCJ
Background
HMR Supplies Pty Ltd ("HMR") is a company that manufactures, supplies, and delivers metal roofing supplies and accessories from premises in Revesby, New South Wales. The company's director, Berry Campbell, and its Operations Manager, Georgia Campbell, were each also charged individually alongside the corporate defendant.
On 13 July 2022, a worker employed by HMR as a truck driver, Owen Taotua, was injured when a forklift operated by Ms Campbell struck his lower left leg and foot while he was walking alongside it in the loading area. Mr Taotua was attempting to place a wooden block under roofing panels so that forklift tines could be inserted beneath them. As Ms Campbell turned the forklift clockwise, the rear left wheel collided with him, causing a fractured fibula and a syndesmosis injury requiring surgery and a two-day hospital admission.
Critically, Ms Campbell did not hold the required high risk work licence (HRWL) to operate a forklift at the time of the incident, and HMR was aware that forklifts were being operated at the site by unlicensed workers. The company had no system of work requiring separation between pedestrians and forklifts, and it failed to notify SafeWork NSW of the incident — the regulator was only notified by Mr Taotua himself five days later. HMR also disturbed the incident site before SafeWork inspectors attended. All three defendants pleaded guilty to their respective charges.
Legal Issues
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Sentencing of a corporate defendant (HMR) for: failure to comply with its primary duty under s 19(1) of the Work Health and Safety Act 2011 (the Act), exposing a worker to a risk of death or serious injury (s 32); failure to notify the regulator of a notifiable incident (s 38); failure to preserve an incident site (s 39); and directing or allowing an unauthorised worker to carry out work (s 43(2)).
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Sentencing of a company officer (Mr Campbell) for failure to exercise due diligence to ensure the company complied with its WHS duties, thereby exposing a worker to a risk of death or serious injury (ss 27 and 32 of the Act).
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Sentencing of an individual worker/manager (Ms Campbell) for failure to take reasonable care in carrying out her duties, exposing a worker to a risk of death or serious injury (ss 28 and 32 of the Act), and carrying out high risk work without the required licence (s 43(1)).
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The appropriate assessment of objective seriousness, aggravating and mitigating factors, capacity to pay, deterrence, remorse, guilty plea discount, and prospects of rehabilitation for each defendant.
Decision
Objective Seriousness and Aggravating Factors
The Court considered the offending in the context of the well-established regulatory framework for forklift safety. Extensive guidance material from SafeWork NSW and SafeWork Australia, as well as the Work Health and Safety Regulation 2017, made clear the serious risks posed by forklifts operating near pedestrians, and the controls that should have been in place. HMR had no pedestrian-forklift separation system, no specific forklift training for workers near forklifts, and knowingly allowed unlicensed workers to operate forklifts. The failure to notify the regulator and the disturbance of the incident site were treated as separate, additional offences reflecting a further disregard for statutory obligations.
The Court assessed the s 32 offence by HMR as being of moderate to high objective seriousness. The risk of death or serious injury arising from the absence of any separation between pedestrians and a moving forklift was well-recognised and foreseeable. The fact that the forklift operator was unlicensed compounded the gravity of the corporate failings. Ms Campbell's individual culpability was assessed having regard to her operational management role and her decision to operate the forklift without a licence, while Mr Campbell's culpability as director arose from his failure to exercise due diligence to ensure HMR met its duties.
Mitigating Factors
All three defendants had no prior criminal or WHS convictions. Each pleaded guilty, entitling them to a discount on sentence in accordance with R v Thomson & Houlton. The Court accepted that the defendants demonstrated remorse: HMR took remedial steps promptly after the incident, including enrolling Ms Campbell and another worker in forklift training (both received HRWLs within seven days), developing an incident procedure, creating a forklift licence register, and implementing a physical separation system using witches hats. These post-incident steps were also relevant to the assessment of rehabilitation prospects.
The Court also considered the defendants' capacity to pay fines, consistent with the principles in Bulga Underground Operations Pty Ltd v Nash.
Sentencing Approach
The Court weighed general deterrence heavily, given the importance of WHS obligations in protecting workers from well-known risks. Specific deterrence was also relevant given the nature of the systemic failures. The guilty pleas and cooperation were given appropriate credit.
While the full text of the sentencing orders is not available in the truncated judgment, the Court's analysis indicated that substantial fines were warranted for HMR across all four charges, with lesser but still significant penalties for Mr Campbell and Ms Campbell on their respective charges.
Orders Made
- The precise quantum of fines imposed on each defendant is not available from the truncated judgment text. However, the Court proceeded to sentence all three defendants on their respective charges after applying discounts for the guilty pleas and taking into account all relevant sentencing factors.
- Orders were made in respect of all charges to which the defendants pleaded guilty, as set out in the introduction to the judgment.
Note: The full sentencing orders may be available from the complete judgment on NSW Caselaw.
Key Takeaways
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The District Court emphasised the extensive regulatory framework and guidance material requiring physical separation of forklifts and pedestrians, finding that a mere warning sign at an entrance without any operational separation system was clearly inadequate.
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Awareness that unlicensed workers were operating forklifts was treated as an aggravating factor for the s 32 offence, and this same conduct gave rise to a separate charge under s 43(2), confirming that permitting unlicensed forklift operation constitutes a distinct and serious offence.
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Post-incident obligations under the Act were strictly enforced, with failure to notify the regulator and disturbance of the incident site each prosecuted as separate offences.
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While HMR's post-incident remedial steps (including training, licence registration, and separation systems) were credited as mitigating factors in sentencing, the Court held that these measures did not excuse the pre-existing systemic failures.
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Both the company director and the operations manager were individually charged and sentenced, reinforcing that WHS duties under ss 27 and 28 of the Act attach personally and that corporate roles do not insulate individuals from prosecution.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27, 28, 32, 38, 39, 43(1), 43(2)
- Work Health and Safety Regulation 2017 (NSW), cll 81, 82, 203, 214, 215; Schedule 3, Item 24
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412