Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam

Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam - [2015] NSWDC 295 - NSWDC 2015 case summary — Zoe

Facts

The parties presented an Agreed Statement of Facts for each offence that can be summarised as follows.
Austral Hydroponics conducted a business growing greenhouse truss tomatoes at 165 Gurner Avenue, Austral (the premises). At the date of the incident it had 5 employees. All employees were supervised by Mr Lam. Mr Nuon was employed as a farmhand and had commenced this employment in 2003.
On 7 March 2013 Mr Nuon was directed by Mr Lam to remove pliable plastic sheets from the roof of a hot house located at the premises. No instruction on how to perform this task was provided by Mr Lam.
The roof was curved forming an arch with a low point of 2.5 m and a high point of 4m.
Mr Nuon used a ladder to climb onto the roof of the hot house and stood on the gutter whilst undertaking the task of removing the plastic sheets.
At approximately 4:30pm, as Mr Nuon was trying to pull away damaged plastic he lost his balance and fell backwards approximately 2.5 metres.
Mr Nuon suffered a fracture to the spine which caused spinal cord damage and tetraplegia. Mr Nuon's condition was considered catastrophic requiring high care. Mr Nuon remained in hospital until his death in late August 2014 from respiratory failure and recurrent aspiration pneumonia. The prosecution did not allege that Mr Nuon's death was caused by the injuries he sustained in the fall.
In December 2011 Safe Work Australia published a Code of Practice entitled: 'Managing the Risk of Falls at Workplaces Code of Practice'. The Code of Practice set out the obligations of employers to manage the risk of employees falling including, that risk assessments be conducted, training be provided in respect of tasks where there is a risk of falling, that fall prevention or arrest devices are used where reasonably practicable and that, where possible, such tasks are carried out on a solid construction. This last obligation is also contained in clause 78(3) of the Work Health and Safety Regulation 2011.
Mr Lam failed to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice. No risk assessment of the task being undertaken by Mr Nuon had been conducted and there was no safe work procedure in place. Mr Nuon was not adequately supervised, or provided with assistance in undertaking the task. Mr Lam did not take reasonable steps to ensure that workers were directed not to work on the roof of a hot house unless a risk assessment had been conducted and control measures to minimise risks to safety were implemented.
Mr Nuon had not received training for working at height. Mr Nuon informed WorkCover that he had learned how to perform the task he was performing at the time of the incident from other employees and that it was the normal practice to reach the roof by ladder and walk along the gutter. At the time of the incident no fall prevention or arrest device or work positioning system was being used.
Mr Lam told WorkCover that employees had been issued with a pole which had a Stanley knife attached to it to allow them to perform the task whilst on the ground. WorkCover were told by Mr Nuon that he had never been provided with such equipment and that it was not available at the premises.
The ladder used by Mr Nuon on the date of the incident was a damaged domestic ladder which should not have been used in an industrial setting. The ladder was extended and unsecured.
Following the incident Austral Hydroponics was issued with a Prohibition to discontinue use of domestic ladders and an Improvement Notice to address the risk of falling from height. To comply with these policies Austral Hydroponics obtained industrial fibre glass ladders, step ladders and fall arrest harnesses.

[4]

Eang Lam

Mr Lam gave oral evidence at the sentencing hearing and was cross-examined.
Mr Lam grew up in Cambodia. His schooling was disrupted when he was sent to a forced labour camp and imprisoned by the Khmer Rouge. His son was born in Cambodia in 1980. Mr Lam then moved to Thailand with his wife and son where they lived in a refugee camp for two years. At about this time Mr Lam met Mr Nuon and they became close friends.
Mr Lam moved to Australia in 1983 and began an industrial sewing business. The business experienced difficulties in around 2002. Mr Nuon, an experienced farmhand, suggested that Mr Lam consider farming. Mr Lam gave evidence that he expressed concerns about the farming idea due to his lack of experience, but that Mr Nuon told him that he had experience and could teach Mr Lam how to farm
The farming business is run by Mr Lam in partnership with his wife and Austral Hydroponics was responsible for the marketing of the crops produced. Austral Hydroponics is no longer trading. Following the accident Mr Lam's son, Hock Lam, incorporated Skyfresh West Pty Ltd (Skyfresh), and this company now markets the crops produced.
Mr Lam gave evidence that at approximately 4.30pm on the date of the incident he was working in the packing shed with his wife when they learned that Mr Nuon was lying on the ground. Mr Lam ran to Mr Nuon who told him to call an ambulance. The police attended the premises that afternoon and two Workcover Inspectors attended the following day. WorkCover also attended the premises around one month after the incident. Mr Lam assisted the police and WorkCover with their investigations.
Mr Lam visited Mr Nuon in hospital approximately 7 or 8 times. Mr Nuon had a wife and three children. Mr Lam apologised to Mrs Nuon and provided $1,200 to her. Mr Lam gave evidence that he could not give more due to his debts. Mr Lam spoke to Mrs Nuon on the telephone and would see her sometimes, however said it was very sad to see Mr Nuon's family.
Mr Lam gave evidence that Austral Hydroponics had a pole with a knife attached to it, but that it was not used regularly at the time of the incident.
Mr Lam accepts responsibility for the accident and expressed deep regret and remorse. Following the accident Mr Lam did not work on the farm for around 6 months. Mr Lam described having changed significantly since the accident becoming withdrawn, not wishing to socialise and having difficulty sleeping. Mr Lam gave evidence that Mr Nuon was a very happy man who was always singing and that he now experiences very unpleasant intrusive memories of hearing his songs and seeing his smiling face. Mr Lam described Mr Nuon as his best friend.
Mr Lam and Mrs Lam own a property in Canley Heights that they purchased in 1988 for approximately $100,000. He gave evidence that the equity in the property has been exhausted to support the farming business and to pay off debts. Mr Lam has had to borrow money from relatives and friends to pay $20,000 for the legal costs of these proceedings. Mr Lam deposed that the farming business has faced financial difficulties because sometimes crops fail.
Mr Lam gave evidence that the premises were purchased in around 2002 by the superannuation fund of himself and his wife and are currently owned by Golden Star Property Trust.
Mr Lam deposed that his son owned a house in Strathfield that he sold approximately 2 years ago. Mr Lam's son lent him around $65,000 to assist Mr Lam with the farming business.
Mr Lam's tax returns and the company's tax returns for the financial years 2012-2014 were tendered. The taxable income of each is set out in the table below. FY Eang Lam Austral Hydro 2012 $61,948 $63 969 2013 $66,450 $51 910 2014 $79,847 $99,609

[11]

Objective seriousness of the offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The risk posed by workers falling from the roof of the hot house was foreseeable and obviously so. The ways in which that risk could be minimised were set out in the Code of Practice which was readily available to both offenders if any enquiry had been made.
The extent of the injury to Mr Nuon was catastrophic. He remained in high dependency care as a result of his injuries until his death.
For Mr Lam's part he was dependent on Mr Nuon to provide him with the relevant 'know-how' to operate the farming business. That resulted in Mr Nuon being fairly independent in undertaking his role at the premises. That did not however alleviate Austral Hydroponics or Mr Lam of their obligations to provide for his health and safety.

[14]

Mitigating factors.

The offenders do not have any prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The farm has been operating since 2003, but Mr Lam operated an industrial sewing business before that without coming under notice of the prosecutor.
The offenders were persons of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. Austral Hydroponics had no convictions prior to this offence and employed 5 people. Mr Lam, a director of Austral Hydroponics, provided a gratuitous payment of $1200 to Mr Nuon's family following the accident, and visited both Mr Nuon and his family on a number of occasions.
The offenders are unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. Austral Hydroponics is no longer trading, and I am satisfied that appropriate steps were taken by Austral Hydroponics following the accident to purchase equipment to be used on the farm to ameliorate the risk of employees falling whilst working at height. Mr Lam has experienced Post-Traumatic Stress Disorder and Major Depression following the incident which diminished his ability to take a leading role in the farming business and heightened his awareness of the need for safety systems. I am satisfied on the balance of probabilities that both offenders are unlikely to re-offend.
The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Lam, the director of Austral Hydroponics, expressed his deep remorse for the offence. Mr Lam has accepted full responsibility for the injury occasioned to Mr Nuon and apologised to Mr Nuon and his family. I am satisfied on the balance of probabilities that the offenders have demonstrated genuine remorse and contrition.
The offenders entered a plea of guilty to the Amended Summons at the earliest possible opportunity: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offenders are entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32].
The appropriate discount for the plea of guilty is 25%.
The offenders co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

[16]

Capacity to pay a fine

Section 6 Fines Act 1996 provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
The Court is required to have regard to this provision before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
On the basis of the findings that I have already made, Austral Hydroponics has very little, if any, capacity to pay a fine, such that any fine imposed is likely to lead to its winding up. However, this is a case that calls for the imposition of a substantial fine as a result of the objective seriousness of the offence and the need for general deterrence.
Mr Lam also has very little capacity to pay a fine, but the imposition of a substantial fine on him is likely to lead to financial ruin and to have a significant impact on Mrs Lam, which in my view would be an unjust result. Mr Sweet argued that the fine imposed on Mr Lam should be no more than $50,000 before applying a discount for the plea of guilty.
As a result of the precarious position of Austral Hydroponics I have decided that it is appropriate to order that Mr Lam pay all of the prosecution's costs agreed in the sum of $20,000 so that they may, if necessary, be effectively enforced. I have taken that amount into account in deciding the amount of the fine to be imposed: Environmental Protection Agency v Barnes [2006] NSWCCA 246 at [78]. Based on my assessment of all of the evidence in this case, I have come to a different fine that that contented for on behalf of Mr Lam.

At a glance

Court

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Judgment (20 paragraphs)

Cases Cited (9)

Cited By (4)