Citation: [2026] NSWDC 118
Court: District Court of New South Wales
Date: 1 May 2026
Judge(s): Strathdee DCJ
Background
Northwest Recycling Centre Pty Ltd ("the defendant") operated a green waste recycling facility at Riverstone, NSW. On 8 July 2022, an employee, Mr John Constable, was fatally crushed by the feed wheel of a Van Gelder Green Waste Grinder while attempting to clear a blockage alone. The grinder had not been isolated and a safety bar had not been installed before he entered the feed chute. He was found deceased approximately two and a half hours later.
The defendant pleaded guilty to a charge under the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty as a person conducting a business or undertaking (PCBU), where that failure exposed workers to a risk of death or serious injury, contrary to s 32 of the Act. The prosecution was brought by SafeWork NSW.
The grinder had been extensively modified from its original design before the defendant acquired it. A toggle switch had been installed that allowed the feed wheel to be raised without engaging the manufacturer's safety latch. When the engine was shut down but the ignition left on, the feed wheel would remain raised for only approximately two minutes before lowering under residual hydraulic pressure, creating a crush hazard for anyone inside the feed chute.
Legal Issues
- Whether the defendant's failure to comply with its primary duty under s 19(1) of the WHS Act exposed workers to a risk of death or serious injury (s 32)
- The appropriate sentence, including the quantum of the fine, having regard to the objective seriousness of the offence, aggravating and mitigating factors, and the defendant's financial circumstances
- Whether an order for the prosecutor's costs should be made
Decision
The defendant was convicted on its guilty plea. The Court approached sentencing by way of "instinctive synthesis" as required by Markarian v The Queen (2005) 228 CLR 357.
The Court considered a range of factors contributing to the seriousness of the offence. The defendant's systems of work were deficient across multiple dimensions. The Safe Work Method Statement was unsigned by workers, did not explain how to isolate the grinder, and was prepared by a safety advisor (Mr John) who had no training or experience with the machine and had not reviewed the operator's manual. The Plant Hazard and Risk Assessment Worksheet was similarly inadequate, failing to address all relevant controls. Training was ad hoc and undocumented, with no assessments to confirm workers understood or retained information. There was no formal supervision system, and the managing director was interstate on the day of the incident with no designated supervisor on site. The safety bar, while on site, was cumbersome for a single operator to install, was not consistently used, and there was no system to ensure its use.
The defendant's post-incident remedial actions were noted. These included updating the risk assessment and SWMS, developing lock-out procedures, removing the problematic toggle switch, implementing structured training, holding a toolbox safety meeting, and instituting a two-person requirement for maintenance tasks.
Five Victim Impact Statements were tendered, attesting to the devastating personal consequences of Mr Constable's death. The Court considered the defendant's guilty plea and any discount for that plea in accordance with s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), along with relevant sentencing principles under ss 3A and 21A of that Act. The judgment text, as available, was truncated before the final determination of the fine amount and costs orders.
Orders Made
- The defendant was convicted of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) for breach of the s 19(1) primary duty
- A fine was imposed (the precise quantum is not available from the truncated judgment text)
- The prosecutor's costs were addressed (details not available from the truncated text)
Note: The judgment text provided was truncated. The above orders are based on the available portion of the decision. The full orders, including the fine amount and any costs order, may differ.
Key Takeaways
- A PCBU's failure to implement adequate isolation procedures, risk assessments, supervision, and training in relation to plant with known crush hazards can constitute a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury.
- The District Court found that a Safe Work Method Statement and a risk assessment are inadequate where they are prepared by a person with no training on, or experience with, the relevant plant, and where the manufacturer's manual has not been consulted.
- No formal supervision system existed at the site, and no designated supervisor was present during the incident; both factors were treated as relevant to the objective seriousness of the offence.
- Post-incident remedial steps (including implementing lock-out procedures, removing unsafe modifications, and introducing structured training and two-person maintenance requirements) were acknowledged but did not negate the seriousness of the pre-existing systemic failings.
- Under the primary duty of care owed by a PCBU, ad hoc and undocumented training with no assessment process does not satisfy the obligation to ensure the health and safety of workers so far as is reasonably practicable.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32
- Work Health and Safety Regulations 2017 (NSW), cll 203, 206, 210, 223
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 30F
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122(2)
Key Cases:
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82