[2024] ACTMC 16

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Industrial Criminal - Workplace Injury

Work Health and Safety Act 2011 (ACT) ss 3, 28(b), 32

Crimes (Sentencing) Act 2005 (ACT) s 7

SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

• 1․ Both the first and second defendant have pleaded guilty to a charge pursuant to s 32 of Work Health and Safety Act 2011 (ACT) ('the Act').
• 2․ As a body corporate, the maximum penalty for the first defendant is $1.5 million.
• 3․ As an individual, the maximum penalty for the second defendant is $150,000.
• 4․ The first defendant is a large company engaged in sourcing and supplying electrical, data and communications, solar, lighting and associated electrical components, operating approximately 400 sites across Australia under various names including TLE Electrical.
• 5․ The second defendant, Jack Platt, was the site manager of the site at which this incident occurred. In his capacity as site manager, Mr Platt was responsible for site safety, and the training and induction of staff.
• 6․ Between 13 December 2021 and 28 January 2022, the first defendant moved TLE Electrical from 22-36 Oatley Court in Belconnen to the workplace at 4/55 Nettlefold Street in Belconnen. Mr Platt was responsible for oversight of this move. The first defendant engaged SSO Handling and Storage ("SSO") to install pallet and cable racking at the workplace.
• 7․ On 5 January 2022, an employee of SSO attended the worksite to install cable and pallet racking. Later that afternoon, CCTV captured employees of the first defendant setting up three-metre-tall cable racking along the left wall of the warehouse. This section of racking had been disassembled at the Oatley Court site and was transported to the new workplace for use.
• 8․ The applicable Australian standard, AS 4084-2012 Steel storage racking, requires steel storage racking to be anchored in accordance with the manufacturer's recommendation. The manufacturer, APC Storage Technology Pty Ltd, recommended footplates be bolted to the bottom of each upright post and fixed to concrete via anchors to secure the racking in place and provide rack stability. The manufacturer further recommended a range of fixings to the rack to ensure stability.
• 9․ Furthermore, at the relevant time, a range of Metal Manufactures Pty Ltd policies and procedures were applicable to racking and storage safety. Training records indicate that Mr Platt had received training in two of four applicable policies and procedures in April and October of 2021 respectively. Training records are indicative of other employees having received either no training or an unknown form of training in relation to racking in storage at an earlier date.
• 10․ The racking was not installed to the relevant Australian standard, nor was it installed in line with the manufacturer's recommendations, or the first defendant's own policies. Fundamentally, the racking was not anchored to the floor and was not installed by a competent person.
• 11․ Following the setup of the racking, at least ten drums containing cables of various widths and lengths were loaded onto the rack. The combined weight of the racking and cable drums is estimated to be several hundred kilograms.
• 12․ SSO attended the Nettlefold Street site on both 7 January 2022 and 10 January 2022 to deliver shelving and set up conduit racking. On neither of those occasions was SSO informed that the racking had been installed by TLE employees nor were they asked to inspect and certify the racking.
• 13․ CCTV captured the incident where Jesse Sands was injured.
• 14․ On 12 January 2022, Mr Sands was using an electric cable winding machine at the site to cut cable to shorter lengths. This requires winding cable from a drum which is secured by cable racking to an empty drum.
• 15․ Mr Sands was winding the cable, when it became jammed and pulled tight between the cable winder and racking, which was previously assembled by TLE workers. The pull caused the cable racking to fall forward on top of Mr Sands. The cable racking struck him in the head and forced his head into the frame of the winding machine.
• 16․ No witnesses saw the racking fall; however, others quickly came to his aid. Mr Sands was initially provided with medical assistance by his colleagues and was later taken to the Canberra Hospital via ambulance where he underwent surgery.
• 17․ Mr Sands sustained significant injuries. These included:

(a) A left hemi-Lefort 1 fracture;

(b) Dentoalveolar fracture;

(c) Lacerations to the rear of the scalp (requiring sutures);

(d) Lacerations to the lip; and,

(e) Left temporal-parietal fracture.

• 18․ In the Victim Impact Statement provided by Mr Sands' mother, she says Mr Sands continues to undergo medical and dental treatment to repair his injuries, two and a half years later. She further adds that the incident has had significant long-term impacts on Mr Sands' wellbeing and mental health.
• 19․ Following the incident, at the request of Mr Platt, SSO attended the site to inspect the cable racking that had fallen on Mr Sands. It was observed that there was no evidence that the racking had been anchored to concrete flooring.
• 20․ WorkSafe ACT subsequently attended the workplace on 19 January 2022 to commence their investigation.

• 21․ Prior to dealing with the subjective factors relevant to each defendant, I will consider the objective factors.
• 22․ As noted in the authorities provided to me by the Parties in this matter and by the Act itself, the penalty I impose must be one which serves the overall purpose of the Act. Notably, the purpose of the Act is to ensure the safety, health, and welfare of workers and others on worksite premises. Furthermore, s 3 of the Act provides that workers ought to be given the highest level of protection from harms to their health, safety, and welfare from hazards and risks which may arise at work.
• 23․ I also must consider the principles of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). With regard to these sentencing principles and those set out in s 3 of the Act, it is clear to me that the sentence I impose must reflect the principle of general deterrence.
• 24․ The Victim Impact statement of Mr Sands' mother indicates that not only has this incident caused Mr Sands significant and severe physical and mental injuries but has had enduring impacts on his livelihood.
• 25․ With regard to the authorities provided, it is conceded that the fact an injury has resulted from a breach of the Act does not mean that the gravity of the seriousness of the breach ought to be assessed in that context. Rather, the Act is primarily concerned with risks to health and safety to workers and more specifically, the duties owed with respect to health and safety.
• 26․ The extent to which the failure to ensure that employees are not exposed to a risk to their health and safety determines the objective gravity of any offence. The occurrence of an accident resulting in death or injury of a particular kind, may impact an assessment of the existence of the risk as well as the nature and seriousness of the risk.
• 27․ In order to determine the gravity of the seriousness of the offence, I must assess the extent of the departure from the duty owed, the extent of the risk to heath and safety created, and the likelihood of risk of a particular harm ensuing.
• 28․ In the decision of SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191 at [68] Strathdee DCJ usefully sets out a summary of the factors to be considered in respect to the objective seriousness of the offence, which I will now detail.
• 29․ The matters relevant to the objective seriousness for a section 32 offence include:

(a) The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where potential injuries are severe regardless of whether they are likely to materialise.

(b) The availability of steps to minimise or eliminate the risk.

(c) Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could have easily been taken, the offending will be more serious.

(d) Whether the risk was known or ought reasonably to have been known or identified by the offender.

(e) Whether the risk was an obvious or clear one.

(f) The vulnerability of workers exposed to the risk.

• 30․ With regard to these factors, I make the following findings as to the seriousness of risk.
• 31․ The risk of a worker being seriously injured or killed by the falling of unsecured racking and cable drums was known to both defendants and was reasonably foreseeable.
• 32․ The first defendant had failed to ensure that it complied with its duty under the Act in various ways.

(a) The first defendant had failed to ensure, during the assembly and installation process, that the cable racking was anchored in accordance with the applicable Australian standard, the manufacturer's requirement, and the first defendant's own policies and procedures.

(b) The first defendant failed to prohibit workers from using the cable racking until such a time as it had been anchored accordingly and inspected and certified by a competent person.

(c) The first defendant failed to ensure that all workers who were required to work with, or near the cable racking had received relevant training and instruction of the first defendant's policies and procedures.

• 33․ The second defendant had failed to comply with his duty under s 28(b) of the Act to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons, and as a result he failed to prohibit workers from using the cable racking until it had been anchored accordingly and inspected and certified by a competent person.
• 34․ I note that Mr Platt had instructed TLE workers, including Mr Sands, not to use the machinery, as deposed by Mr Platt. The distinction I must draw is whether a different degree of seriousness can be considered as Mr Platt did not simply fail to prohibit the use of the cable racking but instead directed employees not to use the cable racking and this direction was not followed.
• 35․ The gravity of the risk in this matter is significant. There was the potential for serious injury or death, particularly with regard to the size and weight of the cable racking and load.
• 36․ The defendants would not have borne significant burden or cost should they have taken appropriate measures. The step which ought to have been taken would not have been complex, burdensome nor mildly inconvenient. In fact, the step which ought to have been taken was known to the defendants and was part of the standard installation procedure for racks of this kind.
• 37․ In my view, this mitigating step could have been easily taken and therefore the offending is more serious. The direction to workers by Mr Platt was not enough. Simply put, the risk could have been eliminated by not loading the cable reels onto the rack at all until the rack was properly anchored. The risk was obvious and it could have been so easily avoided. This is particularly aggravating.
• 38․ It appears to me that the extent of the departure from the duty owed was significant. I note that counsel for the first defendant has submitted that the first defendant had intended to have a competent person install the racking, however, this had been delayed due to COVID-19 delays. It is noted at paragraph 31 that the second defendant had instructed workers not to use the machinery. The extent of the risk to health and safety thereby created is significant regardless, as demonstrated by the injuries sustained by Mr Sands.
• 39․ As a result of the departure from the duty owed, the likelihood of the risk of the particular harm occurring was high. Again, I emphasise that the risk was obvious - to load several hundred kilograms of cabling onto a rack that was not properly anchored was creating a serious risk of harm.
• 40․ In my view, this determines that I should consider the starting point for the financial penalty to impose on the first defendant to be $500,000, and for the second defendant, $10,000.

• 41․ I must consider the subjective factors of both defendants. Both defendants come before the Court with no prior convictions. Both defendants are regarded to be of good character.
• 42․ Both defendants have indicated a plea of guilty at a relatively early opportunity.
• 43․ I must note that the first defendant has taken significant steps following the incident to rectify their failures as set out in the first defendants written submissions and in Exhibit 5, the affidavit of Ella Thurston, who now occupies the role of Group General Manager of Health and Safety, a role created in response to this incident. I accept that this has required significant re-structuring, time and resources. Ms Thurston has also attested to the corporate citizenship of the first defendant, and the support it has provided to Mr Sands.
• 44․ In the second defendant's affidavit he has set out his relevant history of training whilst employed by the first defendant, and his role in implementing the corrective actions taken by the first defendant as site manager.
• 45․ The second defendant relies on the character reference of a friend, who describes him as a person of exceptional character with a strong work ethic and unwavering dedication to his family and business responsibilities.
• 46․ In my view, both defendants have entered a plea of guilty at a relatively early stage which is indicative of both contrition and remorse and a full acceptance of responsibility. I note both defendants are unrecorded and have made considerable steps to minimise or eliminate any further risk in the future. In these circumstances, I will afford each a discount of 25%, despite the strength of the prosecution case.

• 47․ For these reasons, the following orders are made:

(1) In relation to the first defendant Metal Manufacturers Pty Ltd;

1. I impose a conviction and a fine of $375,000, and;
2. The first defendant to pay the informant's costs in the amount of $35,000.

(2) In relation to the second defendant Mr Platt:

1. I impose a conviction upon the second defendant and a fine of $7,500.
2. The second defendant to pay the informant's costs in the amount of $10,000.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Lawton.