SafeWork NSW v BI Australia Pty Ltd

Cases Cited: Baida Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Director of Public Prosecutions v Vibro-Pile (Aust) [2016] VSCA 55
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Hammersley Iron Pty Ltd v Robertson (Western Australia Supreme Court, 2 October 1988, unrep)
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kirwin v The Pilbura Infrastructure Pty Ltd [2012] WASC 99
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Board of Trustees of the Science Museum [1983] 1 WLR 1171
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Youkhana [2004] NSWCCA 412
Royall v The Queen (1991) 172 CLR 378
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Smith v Broken Hill Pty Ltd (1987) CLR 337
Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Theiss Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Category: Principal judgment

Parties: SafeWork NSW (Prosecutor)
BI Australia Pty Ltd (Defendant)

Representation: Counsel:
N Evans (Prosecutor)
No appearance (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
No appearance (Defendant)

File Number(s): 2024/49157

Publication restriction: Nil

JUDGMENT

1. By Summons filed 7 February 2024, BI Australia Pty Ltd (BI) was charged with an offence that on 11 February 2022 at 16/22 St Albans Road, Kingsgrove NSW, or elsewhere, being a person who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure, so far as reasonably practicable, the health and safety of workers whilst the workers were at work in the business or undertaking, did fail to comply with that duty, and the failure to comply with that duty exposed workers, including Mr Mohammad Bilal Chaudhary (Mr Chaudhary) to a risk of death or serious injury or illness contrary to s 32 of the WHS Act.

2. The defendant has never appeared in the proceedings and did not appear at the hearing on 12 June 2025.

3. The prosecutor tendered the Prosecution Ex Parte Tender Bundle (PTB) which became exhibit A.

The Elements of the Offence

4. The prosecution bears the onus of proving beyond reasonable doubt the elements of the offence. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt beyond reasonable doubt.

5. Section 32 of the WHS Act provides:

“A person commits a Category 2 offence if:

(1) the person has a health and safety duty, and

(2) the person fails to comply with that duty, and

(3) the failure exposes an individual to a risk of death or serious injury or illness.”

6. In these proceedings, the duty arises under s 19(1) of the WHS Act, which provides a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the person, and whose activities in carrying out the work are influenced or directed by the person, while the workers are at work in the business or undertaking.

7. The elements of an offence under s 32 of the WHS Act for a breach of s 19(1) duty are:

8. Element 1 – The defendant was conducting a business or undertaking.

9. Element 2 – The defendant owed a duty to ensure, so far as reasonably practicable, the health and safety of:

(a) Workers engaged (or caused to be engaged) by it or workers whose activities in carrying out work were influenced or directed by the defendant; (b) While the workers were at work in the defendant’s business or undertaking.

3. Element 3 – The defendant failed to comply with its health and safety duty.

4. Element 4 – The failure exposed an individual to a risk of death or serious injury.

5. The facts alleged by the prosecutor are set out in detail in the Statement of Facts (SOF) and the prosecution submits that the SOF is supported by the evidence in the PTB (exhibit A).

Factual Background

9. At all material times, Galvatech Pty Ltd (ACN 076 788 246) (Galvatech) was a registered corporation with its registered address and its principal place of business at 1 Wordie Place, Padstow, NSW 2211 (the site).

10. At all material times Bl (ACN 635 713 996) was a registered corporation with its registered address at 178 Wilbur Street, Greenacre, NSW 2190. BI's principal places of business included 16/22 St Albans Road, Kingsgrove, NSW 2208. Bl employed over 30 workers.

11. At all material times, Galvatech engaged BI to provide workers, including forklift operators, on a labour hire basis at the site.

12. At all material times, Galvatech operated galvanising operations. It employed approximately 46 workers at the site.

13. Mr Chaudhary was employed by Bl as a casual forklift operator. His work included lifting loads and working as a “checker”. The role of “checker” involved checking the content of deliveries and loads, and marking associated tags. Mr Chaudhary commenced working with Bl on 24 January 2022. Prior to working with Bl he had not operated a forklift truck. He obtained a forklift truck operators licence in December 2021.

14. At all material times Mr Chaudhary had been placed by Bl at the site to work for Galvatech as the host employer.

The Incident

15. On 11 February 2022 at approximately 2.46pm, Mr Chaudhary was working for Galvatech at the site. He was walking in a car park that was also being used as a makeshift storage area, having been directed to go out into the car park area to ask another worker, Mr Matthew Manson (Mr Manson), to pick up a different pallet for a particular customer. Mr Chaudhary was approaching Mr Manson from behind in order to tell him about the different pallet. Mr Manson was on a forklift truck (the forklift) and was reversing it as Mr Chaudhary was approaching him. Mr Manson was not looking in the direction in which he was reversing the forklift. Mr Chaudhary mistakenly thought Mr Manson could see him while reversing the forklift.

16. The forklift which Mr Manson was reversing struck Mr Chaudhary and then ran over his leg trapping him underneath the forklift. Mr Manson then drove the forklift forward and off Mr Chaudhary’s leg.

17. Mr Manson was employed by Bl. At the time of the incident Mr Manson did not hold a high risk work licence to operate a forklift truck.

18. The warning lights on the forklift were not operating correctly at the time of the incident.

19. Mr Chaudhary suffered a broken leg and other injuries. He required surgery, orthotics and extensive rehabilitation.

Relevant Guidance Materials and Statutory Obligations

20. The relevant guidance materials are set out at pars 14-17 of the SOF.

Galvatech’s Systems of Work Prior to the Incident

21. Galvatech had in place work health and safety policies and procedures, but these were not readily available to workers. Moreover, they did not address the safe use of forklifts in the car park area or the need for forklifts to only be operated by the holders of the required high risk work licence.

22. A risk assessment had been carried out for the operation of forklifts, but this assessment did not address the risk of being struck by a forklift. Moreover, it was not provided to workers as part of their induction to the site or as part of their training and informing when commencing work at the site.

23. The process in place to check that workers held the necessary licenses at the site did not include a system for checking that labour hire workers coming onto the site possessed the necessary high risk work licences. There was a high risk work register in place, but it was only used for full-time workers.

24. The competency checklist for workers at the site was not in use at the time of the incident.

25. There was no process in place for consulting with labour hire providers to ensure they were aware of the risks to health and safety at the site.

26. There was no prohibition against workers at the site operating forklift trucks when they did not hold the required high risk work licence. There was no process in place for checking whether workers who operated forklift trucks at the site held the required high risk work licence.

27. The forklift was not functioning correctly as the warning lights fitted to it were not operating at the time of the incident.

BI’s Systems of Work Prior to the Incident

28. Bl did not have a process in place for inquiring of Galvatech as to the nature of the work to be undertaken by its workers to be placed at the site. As such, Bl did not apprise itself of the risks to the health and safety to workers at the site before placing Mr Chaudhary to work at the site.

29. Bl was unaware what safe work procedures, if any, Galvatech had in place for operating forklift trucks at the site.

30. Bl did not undertake a comprehensive risk assessment of the site extending to the risks associated with the movement of forklift trucks, including when they were not functioning correctly and/or being operated by unlicensed operators.

31. Bl did not assess, or request Galvatech to assess, workers’ competencies to operate forklift trucks at the site.

32. Bl did not consult with Galvatech to ensure there was a safe site-specific traffic management plan for the use of forklift trucks.

33. Bl did not provide, or request Galvatech to provide, instruction or training to workers placed at the site on working safely in and around forklift trucks, and other mobile plant at the site.

Systems of Work After the Incident

34. In response to the incident SafeWork NSW issued a number of notices that related to the risk. Six improvement notices were issued to Galvatech and two were issued to Bl. These were complied with.

35. The improvement notices issued to Galvatech related to risks including:

36. The absence of a traffic management plan.

37. The absence of a system for ensuring workers held high risk work licenses when performing work required such a license.

38. Inspection of forklift trucks.

39. Identification of defects on the forklift.

40. In response to the notices Galvatech took a number of actions including:

41. Hiring a contractor to create a site-specific traffic management plan.

42. Having the forklift serviced.

43. Implementing a system for ensuring workers operating high risk plant held the appropriate high risk work licenses.

44. In response to the notices BI updated some of its systems and changed its processes relating to the verification of high risk licenses, however as they have not appeared before the court there is no assurances that these processes remain implemented.

The Relevant Law

38. The objects clause in s 3 of the WHS Act provides:

“(1) The main object of this act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by:

(a) Protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

……

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection 19(1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

39. The offence is one of strict liability: s 12A of the WHS Act.

40. A person is a “worker” if the person carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: s 7 of the WHS Act.

41. A duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act.

42. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: s 16 of the WHS Act.

43. If more than one person has a duty in relation to the same matter under the WHS Act, each duty holder must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other duty holders in relation to the same matter: s 46 of the WHS Act.

44. The content of the duty is set out in s 19 of the WHS Act, which provides:

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

……”

45. The inclusive list of specific obligations set out in s 19(3) of the WHS Act have each been identified at common law.

46. The requirement to “ensure” means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

47. Safety cannot be ensured if a risk to the health and safety of a worker exists. The evidence of a risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13].

48. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.

49. The word “risk” is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1983] 1 WLR 1171 and Theiss Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67] (Theiss).

50. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) [2016] VSCA 55 at [3]-[6].

51. A duty imposed to ensure health and safety requires the PCBU to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the WHS Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it.

52. “Reasonably Practicable” is defined in s 18 of the WHS Act. The court must take into account and weigh up all relevant matters including;

53. The likelihood of the risk concerned occurring.

54. The degree of harm that might result from the risk.

55. What the defendant knows or ought reasonably to know about:

(a) The risk; (b) Ways of eliminating or minimising the risk.

4. The availability and suitability of ways to eliminate or minimise the risk.

5. After assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

6. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

7. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Slivak) per Gleeson CJ, Gummow and Hayne JJ.

8. The phrase “exposed to risks” contained in s 8(2) of the Occupational Health and Safety Act 2000 (NSW) was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Theiss.

9. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak*.*

10. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

11. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

12. The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not without more, demonstrate a breach of duty: Baida Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

13. The use of a contractor with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbura Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. Where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor’s area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (Western Australia Supreme Court, 2 October 1988, unrep).

14. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

15. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].

16. A duty holder must have regard not only for the ideal worker but also for the one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ

17. If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1987) CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

18. The unforeseen behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

19. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the deceased being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127] (Bulga).

20. The question is to be determined by the application of a common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal manner: Royall v The Queen (1991) 172 CLR 378.

21. Regard must be had to the scope and objects of the WHS Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [70]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga at [130].

Consideration

ELEMENT 1 – That the defendant was a person conducting a business of undertaking and was therefore required to comply with a health and safety duty

69. To establish a breach of s 19(1) of the WHS Act, the prosecution has to establish firstly that the defendant was conducting a business or undertaking. Behind tab 3 of the PTB was an ASIC search, and read in conjunction with the answers given by Michael Marabani in response to a s 155 Notice (tab 16 p 50 PTB), I am satisfied that the defendant was a PCBU and held a WHS duty.

70. The prosecution must also prove that Mr Chaudhary was a “worker”.

71. The meaning of “worker” is dealt with by s 7(1) of the WHS Act which provides:

“A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) An employee, or

(b) A contractor or sub-contractor, or

(c) An employee of a contractor or sub-contractor, or

……”

72. I am satisfied that Mr Chaudhary was a worker based on the replies to the s 155 Noice (tab 16, p 51 PTB), which admitted that he was a worker.

73. Once there is a finding that the defendant was conducting a business or undertaking and that Mr Chaudhary was a worker, the question then becomes whether the defendant has carried out his primary duty of care imposed by s 19(1) of the WHS Act.

ELEMENT 2 – Whether the defendant failed to ensure, so far as was reasonably practicable, health and safety

74. As previously recited, s 18 of the WHS Act provides that in relation to a duty to ensure health and safety, the phrase “reasonably practicable” means that which is, or was at a particular time, reasonably able to be done in relation to ensuring that health and safety, taking into account and weighing up all relevant matters including those set out in subpars (a) to (e) of s 18.

75. I accept that the omission by the defendant was to conduct or make enquiries as to how the site was managed and controlled. The defendant replies to a question in the s 155 Notice (tab 3, pp 54-55 PTB) shows that the defendant did not co-ordinate the operation of plant and equipment, and left this task to Galvatech.

76. Thus, there was no proper risk assessment in place before the defendant sent their workers onto the worksite. The defendant was not even aware of the tasks that its workers would be performing.

77. The defendant reveals in the s 155 Notice responses that they thought that Mr Manson was placed with Galvatech to perform stock and inventory assessments (tab 16, p 56 PTB). Mr Manson was in fact unlicensed in operating dangerous machinery, however the defendant was completely unaware of the work that was being performed at the site.

78. In the affidavit of Mr Chaudhary (tab 7, p 140 PTB) he deposes that he was not given any information about what to do if anything happened, nor where the First Aid box was located, and that the defendant gave him very little training about the operation of the forklift. At question 311, Mr Chaudhary deposes that he was not given any information as to forklift safety. This in my view demonstrates the concurrent failures by the defendant and Galvatech.

ELEMENT 3 – That there were risk(s) to health and safety to workers at work in the business or undertaking

79. Clearly the incident was foreseeable – obvious and apparent on its face. The carpark area had no delineation between where vehicles were to be passed and where pedestrians may move around safely, and no distinction as to where the moving plant could be operating.

80. At tab 16, pp 51 and 52 PTB at question 10, the defendant responds that Mr Chaudhary had commenced working for the defendant on 24 January 2022 and that this placement was his first allocation by the defendant

81. This clearly, in my view, was a hazard to which the defendant was blindly sending workers to a site, while the defendant had no idea what the workers would in fact be doing on the site.

ELEMENT 4 – Whether the failure to ensure the health and safety of Mr Chaudhary or other workers at work to a risk of death, or serious injury or illness

82. Mr Chaudhary was employed by the defendant on 24 January 2022, approximately one month before the incident (see tab 16, pp 51-52 PTB at Q 10). In my view there was little, if any, attempt to ensure his health and safety, or that of any other workers from the risk of death, or serious injury or illness.

83. At tab 7, p 10 of the PTB, it is evident that Mr Chaudhary was taken from the site by ambulance after the incident. He had sustained broken bones around his foot and ankle, and required surgery. I am satisfied that the risk to which the workers were exposed was the risk of injury or death, and the injuries sustained by Mr Chaudhary are an example of that.

Conclusion

84. The prosecutor submits that there is sufficient evidence to satisfy each element of the offence beyond reasonable doubt and as such the court should find the defendant guilty of the offence of failing to comply with its health and safety duty thereby exposing Mr Chaudhary and other workers to a risk of death or serious injury contrary to ss 32 and 19(1) of the WHS Act.

85. I find that the prosecution has proved the elements of the offence beyond reasonable doubt. Therefore, the defendant is convicted.

86. I will now sentence the defendant in its absence, and note the prosecutor’s submissions as to penalty.

Sentencing

87. The maximum penalty for the offence is $1,782,579.25.

88. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

89. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”

Objective Seriousness of the Offence

90. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.”

91. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

92. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

93. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

94. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

95. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3*)* (2005) 147 IR 117; [2005] NSWIRComm 61.

96. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

97. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

98. His Honour further observed at [42]:

“The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

99. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

100. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

101. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

102. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56].

103. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City Drilling at [34].

104. The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34]. These can be summarised as follows:

105. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53].

106. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

107. Whether the risk was an obvious or clear one.

108. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd*; SafeWork NSW v Cai* [2018] NSWDC 398 at [55] (Russell SC DCJ).

109. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

Matters Relevant to Determining the Culpability of the Defendant

106. The defendant, a labour hire company, was blindly sending workers off onto a worksite upon which the defendant had no idea of the tasks that the workers would be performing. They had not attended the worksite to check what the works would be.

107. Thus, there was no proper assessment in place before sending the workers on site.

108. The defendant omitted to make enquiries as to the manner in which the site that it was sending its workers to was to be managed or controlled.

109. Mr Manson who was employed by the defendant did not hold a high risk work licence to operate a forklift at the relevant time. This was clearly hazardous work as he was operating dangerous plant for which he was not qualified to operate.

110. Mr Chaudhary commenced employment with the defendant on 24 January 2022, approximately one month before the incident occurred, yet the defendant made no enquiries as to the work he was to do or if he was appropriately qualified to do so.

111. Tab 2 at par 17 PTB demonstrates the failures of the defendant clearly as they had failed to follow any of these checks and balances before sending the workers, including Mr Chaudhary, on site.

Deterrence

112. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

113. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

114. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

115. The Court of Criminal Appeal in Bulga at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

116. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with the use of forklifts on building and construction sites would be described as hazardous.

117. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

118. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

119. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. In this instance there is no evidence of any changes that the defendant may have made to its work practices.

Aggravating Factors

120. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

121. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

Mitigating Factors

122. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at [456]-[457] the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

123. The defendant has not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.

124. As the defendant has not appeared, there are no other mitigating factors before the court.

Penalty

125. I make the following orders:

126. BI Australia Pty Ltd is found guilty.

127. BI Australia Pty Ltd is convicted.

128. I order that BI Australia Pty Ltd pay a fine of $400,000.

129. I order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

130. I order that BI Australia Pty Ltd pay the prosecutors costs not to exceed $40,000.

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