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

Crimes (Sentencing) Act 2005 (ACT) s 7

SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

1. The defendant has pleaded guilty to a single charge pursuant to section 32 of the Work Health and Safety Act 2011 (ACT) ('the Act').
2. As a body corporate the maximum penalty is $1.5 million.
3. I will not recite from the statement of facts at length.
4. In brief, the defendant is in the business of supplying and distributing building and construction materials.
5. In April 2021 the defendant owned two trucks which had vehicle mounted cranes installed on them, to allow the loading and unloading of orders to and from the trucks. One of these trucks was a white Isuzu FTR single cab flathead truck. Around August 2017, a second-hand vehicle mounted Fassi F80A.22 crane ("the Fassi crane") was installed onto this truck. The crane had dual operating controls, one on each side of the truck.
6. Since the installation, the Fassi crane had not undergone an inspection, maintenance or servicing by a qualified and competent person. In March 2021, the operating controls on the driver's side broke. The defendant was advised of this by one of its employees but did not take any action in respect to this.
7. On 16 April 2021 Mr James Webb was using this truck to deliver 29 planks of laminated veneer lumber, weighing approximately 878 kg, to a worksite at 26 Hawker St in Torrens. He arrived at approximately 10.30am and began to unload the planks. He was unable to use the driver side controls for the crane as they were not working. He slung the load in a manner which was later found to be incorrect. As he moved the load, the front set of slings came out of the crane's hook through the safety latch, causing the front of the load to drop and strike Mr Webb who fell to the ground with the load landing on top of his head and his chest.
8. Other workers on the site dragged Mr Webb out from underneath the load.
9. Mr Webb sustained significant injuries, which are set out at page 8 of the agreed statement of facts (Exhibit 1). His Victim Impact Statement is Exhibit 2.
10. The subsequent Worksafe investigation discovered multiple issues. They included:
    1. The crane was unserviceable and should not have been used;
    2. There were no crane service records;
    3. Hydraulic hoses on the crane had advanced physical damage;
    4. The stabiliser legs were in a poor state of maintenance. One of the legs fell out of its socket when it was attempted to be extended by a mechanical engineer inspecting the crane after the accident;
    5. The driver side crane controls were inoperative;
    6. The hook safety latch was excessively worn and not able to perform its function;
    7. Three of the four slings used to lift the load were not suitable for use;
    8. The defendant did not regularly inspect slings nor have a sling register which would keep track of sling use and check for damage and decommission damaged slings where required;
    9. The load was not correctly slung by Mr Webb;
    10. The defendant did not provide adequate training to its drivers about proper slinging techniques, nor about the safe use of vehicle mounted cranes;
    11. The defendant did not provide adequate supervision in order to verify the competencies of its drivers to rig loads and operate vehicle mounted cranes, and to ensure their work was being conducted in a safe manner;
    12. The defendant did not have any processes or procedures in place to check the condition of the Fassi crane, or crane hooks; and
    13. The defendant allowed the Isuzu truck and Fassi crane to be used after being notified of the controls on the driver side not working.

1. Before dealing with the subjective factors relevant to the defendant I will deal with the objective factors.
2. As has been noted in the large number of authorities usefully provided to me and indeed in the Act itself, the penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: section 3 of the Act.
3. I have also had regard to the principles of sentencing set out in section 7 of the Crimes (Sentencing) Act 2005 (ACT). It seems to me, when having regard to those principles and that in section 3 of the Act, there is a strong need for the sentence imposed to reflect the principle of general deterrence.
4. Mr Webb has eloquently set out in his victim impact statement the consequences of this incident upon him including significant long-term impacts upon his physical movement and long-term effects to his mental health. I also note that Mr Webb is related to the directors and operators of the defendant company.
5. I note from the many authorities provided that the fact that injury has been caused does not necessarily mean that the gravity of the seriousness of the breach should be assessed in that context.
6. Rather the Act is concerned generally with risks to health and safety, and under part three concerned specifically with the duties owed with respect to health and safety. It is the extent that the failure to ensure that employees are not exposed to the risk to their health and safety which determines the objective gravity of any offence.
7. The consequences of the failure generally do not. That is not to say that the death or injury occurring is necessarily irrelevant. The occurrence of any accident resulting in death or injury of a particular kind may inform an assessment of, first the existence of the risk, and secondly the nature and seriousness of the risk.
8. Hence in determining the gravity of the seriousness of the offence, I must assess firstly the extent of the departure from the duty owed, secondly the extent of the risk to health and safety thereby created, and thirdly the likelihood of the risk of particular harm resulting.
9. Put another way, in a case such as the present, the gravity of the seriousness of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that workers were not exposed to risks to their safety. An offence will be serious where there is an obvious and foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible.
10. How and why the failure occurred is however relevant to sentencing. In assessing the company's culpability, it will be relevant to know for example whether the breach was the result of failure to adhere to systems put in place by management or, in the alternative was a result of failure by management to establish adequate safety systems and procedures in the first place.
11. 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 recite from.
12. The matters relevant to the objective seriousness for a section 32 offence include:
    1. 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.
    2. The availability of steps to minimise or eliminate the risk.
    3. Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could have easily been taken, the offending will be more serious.
    4. Whether the risk was known or ought reasonably to have been known or identified by the offender.
    5. Whether the risk was an obvious or clear one.
    6. The vulnerability of workers exposed to the risk.
13. In my view I make the following findings as to the seriousness of the risk.
14. The risk of the worker being seriously injured or killed as a result of being struck by a load whilst operating the vehicle mounted crane, was known to the defendant and was foreseeable.
15. Further, in the agreed statement of facts the defendant agreed that it had no processes or procedures in place to check the condition of the Fassi crane or slings on a regular basis.
16. As noted at paragraph 10 above, the number of defects relating to the crane and slings is very troubling. The fact that the defendant continued to operate the vehicle and crane even after being notified of the problems with the controls is particularly aggravating.
17. The defendant agreed that it failed to provide adequate information and training to its workers and failed to provide adequate supervision to its workers.
18. The gravity of the risk was significant as there was the potential for a very serious injury or fatality, particularly in regard to the size and weight of the loads being lifted.
19. Taking appropriate measures would not have entailed significant burden or cost. The steps taken post the incident were not complex, burdensome, nor mildly inconvenient. Mitigating steps could have been easily taken, which makes the offending more serious.
20. Having had regard to those principles it seems to me, firstly the extent of the departure from the duty owed was significant. Secondly the extent of the risk to health and safety thereby created was in my view also significant, as indeed demonstrated by the injury sustained to Mr Webb.
21. Thirdly as a result of that departure from the duty owed, the likelihood of risk of particular harm resulting was high. The risk was as a result of the failure by the Defendant to establish adequate safety procedures, both in terms of servicing the crane, safety hook and slings, and in failing to correctly train its employees in their use of them. Implementing those procedures was not complex, burdensome, or inconvenient. It is therefore my view that the objective gravity of the seriousness of the breach is to be considered as high overall.
22. In my view this determines that I should consider the starting point for the financial penalty to impose as $400,000.

1. I then turn to the subjective factors of the defendant. The defendant comes before the court with no prior convictions. The defendant is to be regarded of good character.
2. The defendant indicated a plea of guilty at the earliest opportunity.
3. What is also significant is the steps the defendant has taken following the accident. The letter of Mr Mair dated 16 May 2023, which forms part of the defendant's tender bundle (Exhibit 3), sets out the many steps taken by the defendant since to minimise the risk of further injury to its workers. I accept that has involved a considerable investment in new equipment.
4. It seems to me in those circumstances the defendant has entered a plea of guilty at an early time, which is an indication of both contrition and remorse and a full acceptance of responsibility. The defendant's lack of prior convictions and the steps it has taken to ensure that the risk has been minimised or eliminated in the future should also count in its favour. I'm prepared to afford the maximum discount of 25%, notwithstanding the strength of the prosecution case against the defendant.
5. Accordingly, I impose a conviction upon the defendant and a fine of $300,000.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Decision of His Honour Magistrate Lawton.