Citation: SafeWork NSW v Saveba Pty Ltd [2025] NSWDC 31
Court: District Court of New South Wales
Date: 26 February 2025
Judge: Scotting DCJ
Background
Saveba Pty Ltd operated a warehouse in Pemulwuy, New South Wales, trading as a well-known furniture retailer. The company engaged workers through labour hire arrangements, including a worker assigned to perform quality control duties who had commenced at the site only months before the incident.
On 9 February 2022, the worker and a colleague were each operating electric ride-on pallet movers (Toyota LPE200 units) in opposite directions within the warehouse's "Hard Stand" area. Both were travelling in reverse. When they approached each other and swerved simultaneously in the same direction, the platforms of their machines collided. The worker had one foot overhanging the platform, and that foot was caught between the two platforms.
The worker suffered a severe crush injury and compound fracture to his right foot. His right leg was subsequently amputated below the knee. SafeWork NSW prosecuted the company for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011, exposing the worker to a risk of death or serious injury.
Legal Issues
- Whether the company failed to comply with its primary duty of care under s 19(1) of the Work Health and Safety Act 2011, constituting an offence under s 32 of that Act
- The objective seriousness of the offence for sentencing purposes
- What aggravating and mitigating factors applied, including the worker's injuries, the company's prior record, its remorse, and its cooperation with investigators
- The appropriate discount for the guilty plea
- The appropriate quantum of the fine, having regard to the maximum penalty and the company's capacity to pay
Decision
Scotting DCJ sentenced the company following its guilty plea. The court found the offence to be of at least moderate objective seriousness. The risk of injury from operating mobile plant without adequate training, instruction, or traffic management procedures was foreseeable and preventable. The company had documentation in place, including a Traffic Management Plan, a Traffic Management Procedure, and a Safe Work Procedure, but none of these were effectively communicated to relevant workers. The worker who was injured had not even been made aware these documents existed.
The court identified several compounding failures: a supervisor directed the injured worker to use a pallet rider without first verifying his competency; workers received only informal instruction from colleagues rather than formal assessed training; and the company's WHS staff were not based at the site. No direction-of-travel rules for mobile plant were enforced in practice.
On mitigating factors, the court accepted that the company had no prior convictions, had demonstrated genuine remorse through its managing director's evidence, had taken remedial steps after the incident, and was a long-standing business with a history of community involvement. The company cooperated with the SafeWork NSW investigation. The court applied a 25% discount to the fine to reflect the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
The court assessed the appropriate fine before discount at $520,000, reducing it to $390,000 after applying the 25% plea discount. The company did not contend it had a reduced capacity to pay. The court noted that capacity to pay is relevant but not decisive, and that the seriousness of the offence and the need for general deterrence may still warrant a substantial fine even where financial capacity is limited.
Orders Made
- Saveba Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $390,000 imposed (being $520,000 reduced by 25% for the guilty plea)
- The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)
Key Takeaways
- A company's failure to effectively communicate its own safety documentation to workers, including traffic management plans and safe work procedures, was central to the court's finding of liability and its assessment of objective seriousness.
- Under s 19(1) of the Work Health and Safety Act 2011, the primary duty extends to ensuring workers are adequately trained, instructed, and assessed as competent before being directed to operate mobile plant, even where those workers are engaged through labour hire arrangements.
- Aggravating features included the severity and permanence of the injury (below-knee amputation), the foreseeable nature of the risk, and the gap between the company's documented procedures and what actually occurred on the warehouse floor.
- A 25% guilty plea discount applied, consistent with established New South Wales sentencing principles, where the plea was entered at an early stage and carried both utilitarian value and an indication of genuine remorse.
- Capacity to pay a fine is relevant but not determinative. The District Court confirmed that the seriousness of a work health and safety offence and the need for general deterrence can justify a substantial fine even where an offender does not contest its financial position.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412