SafeWork NSW v JBS Australia Pty Limited

District Court of NSW|2020-10-13|Before: Mr P

Judgment

On 22 July 2020, JBS Australia Pty Ltd (ACN 011 062 338) ('the defendant') pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act') that, by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, it exposed workers, and in particular Mr Richard Nicholls, Ms Margaret Ann Wippell, Ms Nicole Radcliffe and Mr Warwick Scott Ranclaud, to a risk of death or serious injury.
The maximum penalty prescribed under the Act as at the date of the offence is a fine of $1,500,000.00.

BACKGROUND

The defendant is a person conducting a business or undertaking ('PCBU') as a meat processing company in Australia. The defendant operates a cattle feedlot known as the Caroona Feedlot at 2456 Coonabarabran Road, Caroona in the State of New South Wales ('the workplace'), which is a workplace for the purposes of s 8 of the Act. The workplace is a 23,500 head capacity, 1,390 hectare feedlot situated 35 kilometres west of Quirindi.

PREVIOUS FIRES

In about November 2016, two separate fires occurred during a period of 14 days while a tractor and mower conditioner were being used to cut cereal crop. The cereal crop was being cut to create a windrow. A windrow is a row of cut hay or small grain crop left to dry before being baled, combined or rolled. For hay, the windrow is often formed by a hay rake, which rakes hay that has been cut by a mowing machine into a row.
The tractor and mower conditioner were being used by Mr Nicholls when the two fires occurred.
The two fires were located on the east side of the feedlot at the workplace and started behind the tractor and mower conditioner. Neither fire became out of control because fire extinguishers and fire beaters were used to put out the flames.
The defendant did not keep a record of either fire, did not conduct a risk assessment, did not update its Emergency Plan nor did it hold any meetings with workers arising from the two separate fires.

THE INCIDENT

On 16 February 2017, the Bureau of Meteorology predicted a top temperature of 37 degrees Celsius for the Quirindi area, approximately 30 kilometres away from the workplace. There was also a weather station at the workplace which recorded real time temperatures.
At approximately 5:00pm on 16 February 2017, Mr Nicholls commenced using a John Deere 7215R Tractor Auto Steer and John Deere 946 MOCO mower conditioner ('tractor and mower conditioner') to harvest kikuyu grass. The tractor and mower conditioner is a tractor drawn disc mower that mows grass, hay or crop then conditions the grass, hay or crop and places it into a windrow in preparation for raking and baling.
The kikuyu grass was in a 46-hectare paddock ('the paddock') located at the workplace. The paddock was approximately 2.3 km away, via an internal roadway, from the feedlot at the workplace. In some sections, the crop was approximately 2 feet tall, but the majority was approximately 1 foot to 1.5 feet tall.
After completing several rounds around the outside of the paddock, Mr Nicholls began mowing a straight line through the middle of the paddock, in an east to west direction to create a windrow. After completing this windrow, Mr Nicholls was about to begin mowing a second windrow in a west to east direction. Before commencing the second windrow, Mr Nicholls noticed a fire had broken out approximately two thirds of the way towards the paddock's east boundary, near the windrow that he previously created.
Upon seeing the fire, Mr Nicholls drove the tractor and mower conditioner to the fire.
Once Mr Nicholls arrived at the fire, he used the standard size water-based fire extinguisher that was attached to the tractor and mower conditioner and attempted to extinguish the fire. After a period fighting the fire, the fire extinguisher ran out of water. At this point, the size of the fire was approximately the area of two cars.
Mr Nicholls then drove out of the fire area in the paddock in the tractor and mower conditioner and used the feedlot radio to contact Ms Wippell. Mr Nicholls contacted Ms Wippell after being unable to contact other workers located at the feedlot and he was aware that Ms Wippell would be in the feedlot area until at least 6:00 pm that day.
Mr Nicholls informed Ms Wippell of the fire and asked her to go to the paddock with the water truck and two rubber fire beaters, recently purchased, to help put out the fire. The water truck was 2.5 metres in height and its primary purpose was dust suppression. Ms Radcliffe, who was at the feedlot with Ms Wippell, heard the request by Mr Nicholls. Mr Wippell drove the water truck to the paddock while Ms Radcliffe drove in her utility with the two fire beaters.
Upon arriving at the 'Turkey Nest' (an area near the feedlot) Mr Nicholls left the tractor and mower conditioner there and a drove his Toyota Prado 4WD back to the fire at the paddock.
Ms Wippell was already at the fire with the water truck when Mr Nicholls and Ms Radcliffe arrived at the fire in the paddock. The fire front by this time was approximately 30 to 40 metres wide, with a thick grey smoke, moving in a south-westerly direction, away from the feedlot, with the wind coming from a north-east direction heading towards south-west.
At approximately 5:30 pm, Mr Nicholls, Ms Radcliffe, and Ms Wippell began fighting the fire. Ms Wippell was in front of the fire front using the rear fan of the water truck to fight the fire and was spraying water on the fire in a southerly direction moving from east to west in front of the fire front and Mr Nicholls and Ms Radcliffe were walking behind the water truck using a fire beater.
After some time, Ms Wippell asked Ms Radcliffe to drive the water truck while she manually used the hose of the water truck to fight the fire. Ms Radcliffe then commenced driving the water truck. During this time, Mr Nicholls' fire beater broke. Mr Nicholls decided that the water truck and the fire beaters were not adequate to fight the fire and that firebreaks were needed to stop the spread of the fire front. Mr Nicholls instructed Ms Radcliffe to continue fighting the fire while he left to pick up a tractor to create firebreaks.
Mr Nicholls returned to the feedlot and picked up an 8245 John Deer tractor with 12-foot-wide drag bucket ('the John Deer tractor') to use to create firebreaks.
At this time, Mr Nicholls saw Mr Ranclaud in the area and contacted him via the radio and requested Mr Ranclaud to assist in fighting the fire. Mr Ranclaud was operating a 970F Caterpillar Front End Loader ('the Front-End loader').
Ms Radcliffe continued to drive the water truck. The flames were higher than the truck and were 'curling out'. Smoke was blowing all over Ms Wippell who was nearly at the point of leaving because she could not see where she was headed.
Mr Nicholls returned to the fire at the paddock accompanied by Mr Ranclaud and positioned himself on the western side of the fire front and commenced making firebreaks. There was a heavy, thick white smoke in the area, rising to 150 feet, with very low visibility.
At this time, Mr Ranclaud was using the front-end loader to create a fire break on the eastern side of the fire front. During this time, Ms Radcliffe observed Mr Ranclaud created a fire break with burning grass and small flames under the front-end loader. Ms Radcliffe saw Mr Ranclaud subsequently drive the front-end loader back into the smoke, at which point Mr Ranclaud and the front-end loader were no longer able to be seen.
Ms Radcliffe then saw Mr Ranclaud walk out of the smoke, with his clothing burnt off, without shoes, and suffering burns to his body. Ms Wippell also observed Mr Ranclaud walking out of the smoke and began pouring water from the water canon over Mr Ranclaud.
At this point the water supply in the water tanker ran out. At 5:58 pm, Ms Radcliffe contacted emergency services and requested an ambulance. Ms Radcliffe covered Mr Ranclaud with a wet shirt as directed by emergency services.
Ms Wippell and Ms Radcliffe continued to fight the fire while tending to Mr Ranclaud. Mr Nicholls also continued to fight the fire.
An ambulance arrived at approximately 6:40 pm.
Ms Wippell subsequently contacted another person and requested that the NSW Rural Fire Service be called.
NSW Rural Fire Service arrived at about 7.05 pm and extinguished the fire by approximately 8:16 pm. The total area that was affected by the grass fire was approximately 10 hectares.
Mr Ranclaud was airlifted from the scene to Royal North Shore Hospital. He suffered from severe thermal injuries to 90% of his body. Mr Ranclaud died as a result of his injuries on 18 February 2017.

SYSTEMS OF WORK PRIOR TO THE INJURY

On 16 February 2017, JBS had in place an Emergency Plan (dated 10 August 2016). The Emergency Plan provided instructions to workers about responding in case of a fire in, or near, buildings at the workplace. That Emergency Plan included, inter alia:

a policy for dealing with the media in the event of an emergency;
a general evacuation procedure;
establishing an Emergency Control Organisation ('ECO'), whose role in event of an emergency was to follow a system of procedures to organise and supervise occupants to ensure, as far as is practicable, the safety of persons and property and if necessary, the orderly movement of people and safe evacuation from a danger zone. Furthermore, the ECO would supervise and ensure the orderly re-entry to buildings when declared safe;
setting up a system whereby all visitors and contractors on site during an emergency must be taken to the designated assembly area;
a fire and emergency evacuation alarm system installed throughout the workplace;
providing ongoing training for all workers to ensure the effective implementation of Emergency Plan, whereby every person permanently working on the site will be given training and instruction on emergency procedures and the evacuation plan on the day of engagement;
establishing an Emergency Planning Committee ('EPC') with one of the roles of the EPC being to design and implement an Emergency Control Plan and arrange for the training of personnel in that plan; and
mandating that Mr Nicholls was the Chief Warden at the workplace and a member of the EPC, Ms Wippell was the Deputy Chief Warden at the workplace and a member of the EPC, and Ms Radcliffe was a Warden at the workplace.

However, the Emergency Plan did not provide:

instructions for workers responding in case of a grass fire or bush fire at the workplace;
training and instruction on emergency procedures for workers in dealing with a grass fire or bush fire at the workplace;
evacuation procedure for dealing with a grass fire or bush fire at the workplace; and
training and instructions for dealing a grass fire or bush fire at the workplace.

Mr Ranclaud, as an independent contractor at the workplace, was provided with a contractor induction to work at the workplace. However, the induction did not include the Emergency Plan and did not include issues regarding a fire emergency.
Furthermore, JBS:

did not conduct a risk assessment regarding the risk of a grass fire outbreak whilst using machinery in the paddocks of the workplace;
did not provide firefighting Personal Protective Equipment ('PPE') to workers;
did not provide training for workers regarding a grass fire outbreak;
did not conduct any Emergency Plan meetings regarding the risk of a grass fire outbreak at the workplace. There were, however, meetings regarding the risk of a grass fire and/or bush fire spreading to the feedlot at the workplace; and
did not provide training and instructions to workers for undertaking harvesting operations during periods of high temperatures, other than to not harvest on days declared 'Total Fire Ban' by NSW Rural Fire Services.

Work Health and Safety Regulation 2011 (NSW)

JBS had legal obligations under the Work Health and Safety Regulation 2011 (NSW) ('the Regulation').
Clause 34 of the Regulation requires that a duty holder must, in managing risks to health and safety, identify reasonably foreseeable hazards that could give rise to risks to health and safety.
Clause 35 of the Regulation requires that a duty holder must, in managing risks to health and safety, eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable.
Clause 43 of the Regulation requires that a PCBU at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following emergency procedures, including:

an effective response to an emergency;
evacuation procedures;
notifying emergency service organisations at the earliest opportunity;
medical treatment and assistance;
effective communication between the person authorised by the PCBU to coordinate the emergency response and all persons at the workplace;
testing of the emergency procedures, including the frequency of testing; and
information, training and instruction to relevant workers in relation to implementing the emergency procedures.

The PCBU must maintain the emergency plan for the workplace so that it remains effective and must have regard to all relevant matters, including:

the nature of the work being carried out at the workplace;
the nature of the hazards at the workplace;
the size and location of the workplace; and
the number and composition of the workers and other persons at the workplace.

Clause 48 of the Regulation requires that a PCBU must manage risks to the health and safety of a worker associated with remote or isolated work, and in minimising risks to the health and safety of a worker associated with remote or isolated work, a PCBU must provide a system of work that includes effective communication with the worker. Clause 48(3) of the Regulation states that 'assistance' includes rescue, medical assistance and the attendance of emergency service workers, and 'remote or isolated work', in relation to a worker, means work that is isolated from the assistance of other persons because of location, time or the nature of the work.

Guidance Materials

Guidance materials which provided advice regarding grass fires were readily accessible and available in the public domain. Such guidance materials included as follows.
NSW Rural Fire Service Fact Sheet on Grass Fires (June 2011) ('the Fact Sheet') outlines ways to control the risk of grass fires, including a combination of control measures. The Fact Sheet states that the safest place to be during a grass fire is well away from the fire, or the burnt ground as a safe refuge. The Fact Sheet recommends wearing protective clothing that covers all exposed skin, as well as leather gloves, eye protection, something to cover the mouth and nose, and sturdy leather boots and woollen socks. The Fact Sheet notes that machinery such as tractors, slashers and harvesters can start grass fires, and as such, it is important to ensure that such machinery is free from faults or mechanical defects, carrying a working water fire extinguisher and not used during extreme fire conditions.
NSW Rural Fire Service Guide to Farm FireWise: Checklist and Action Plan (July 2007) provides advice for NSW rural landholders to prepare for and prevent bush fires. Measures outlined to control the risk of grass fires, include that the storage area for PPE should be known and easily accessible to all the family and workers, including long sleeve shirts and long pants (cotton or wool), fully enclosed leather shoes or boots, leather gloves, goggles, and smoke masks; and that during harvest season, and machinery and weather conditions should be checked before harvesting.
Code of Practice Managing the work environment and facilities (December 2011) ('Code of Practice') provides guidance in assisting a PCBU to comply with Clause 43 of the Regulation (ensure that an emergency plan is prepared and maintained) and Clause 48 of the Regulation (effective communication with the worker).
Australian Standard AS 3745-2010 Planning for Emergencies in Facilities (May 2014) ('AS'), referred to in the Code of Practice, has the objective of enhancing the safety of people in facilities and provides a framework for emergency planning. The AS provides advice regarding fire and smoke emergencies at Appendix A, which states that a fire response should embrace the following four essential steps, which in most cases will need to be initiated concurrently: 1. Life safety: Ensuring the immediate safety of anyone within the facility in a fire situation takes precedence; 2. Call the fire brigade; 3. Evacuation: The emergency response procedures should have specific detail of emergency evacuation actions in a fire situation; and 4. Fight the fire (however, as soon as it becomes obvious that there are unacceptably high risks associated with attempts to control the fire, occupants should withdraw).
SafeWork NSW Fact Sheet - Emergency Plans provides general guidance for PCBUs and workers on preparing and maintaining general emergency plans for fixed workplaces under the Regulation, including emergency procedures, evacuation procedures, medical treatment and assistance, and notifying emergency service organisations at the earliest opportunity.
Despite the publicly available material and its own experience, the defendant gave no consideration to the risk of ignition of, or the risks associated with, grass fires during crop harvesting. In its response to a notice issued under s 155 of the Act, the defendant indicated that it provided no formal training, instruction or information to Mr Nicholls about minimising the potential for bush fires to ignite when mowing or harvesting. Whilst the defendant had an emergency plan before the incident, it had not conducted any risk assessment to identify ignition hazards that might give rise to grass fires igniting and spreading.
No one at the fire ground had any formal fire-fighting experience or training. The defendant provided no fire-fighting specific PPE; rather, workers wore only normal work attire (boots, jeans and long sleeve shirts). Despite the previous fires at the paddocks in the workplace, the Emergency Plan did not identify or provide for a safe and effective response in the event of a grass fire. No one at the fire ground, including Mr Ranclaud, was provided with any training, information or instruction on how to respond to, or how to fight, a grass fire.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

Following the incident and because of an Improvement Notice issued by SafeWork NSW pursuant to s 191 of the Act, the defendant introduced a Work Health and Management System (dated 18 April 2017), which included a Grass & Bush Fires Response and a Grass or Bush Fire Response Checklist. The updated procedure and checklist complied with the Improvement Notice.
On 20 & 21 March 2017, the defendant provided relevant workers at the Caroona Feedlot with formal training on the prevention, preparedness and response to the grass fires.
The defendant had emergency planning processes and systems in place at the time of the incident which provided for indirect firefighting using mobile plant and equipment and handheld tools and, when a fire got to the stage of requiring direct fire fighting, evacuation and the engagement of emergency services. Prior to the incident, the defendant did not expect, nor require, workers to engage in direct firefighting activities. This remains the defendant's position. It is accepted that prior to the incident, the defendant was not aware of any workers engaging in direct fire fighting activities as occurred at the time of the incident.
The defendant has implemented measures since the incident to eliminate, or minimise so far as is reasonably practicable, the risk of a grass fire breaking out at the Caroona Feedlot site and a similar incident to this incident occurring again. Specifically, the defendant has: 1. engaged a fire safety expert to review its emergency planning processes and procedures; 2. with the assistance of the fire safety expert they engaged, implemented a specific procedure and processes relating to preparing for and responding to grass and bush fires, which include information on potential ignition risks for grass fires, and express prohibition on direct fire fighting, instruction on how appropriately trained workers should respond to, and engage in indirect fire fighting of, a grass fire and when emergency services (the NSW Rural Fire Service) should be contacted. The defendant provides its workers with training, supervision and instruction on these procedures and processes; 3. renewed plant and equipment to be used for indirect fire fighting; 4. provided workers with annual fire extinguisher training; 5. engaged a Feedlot Learning and Development Advisor (who is an expert in work health and safety training) and a Graduate Organisational Development Officer; 6. developed, with the assistance of the Feedlot Learning and Development Advisor and Graduate Organisational Development Officer, a certified training program (Certificate III in Feedlot Operations) which is offered to all Feedlot employees and delivered by an external training provider; and 7. reviewed matters at the Caroona Feedlot with specific focus on working culture and leadership.
The defendant has not purchased any specific PPE associated with directly fighting a grass fire since the incident. Although the defendant accepts that providing PPE is a reasonably practicable measure that could have been taken by it, the defendant prohibits its workers from engaging in any form of direct firefighting.
Providing workers with PPE of the kind and to the standard required to engage in direct firefighting would be in direct contradiction of its strict prohibition on direct fire fighting and serve to undermine the work that the defendant has done to eliminate the practice.

THE RISK

The risk was the risk of workers, in particular Mr Nicholls, Ms Wippell, Ms Radcliff and Mr Ranclaud, being exposed to a risk of death or serious injury as a result of smoke inhalation, burns, and/or other injuries associated with exposure to a grass fire.

SENTENCING

I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; and 6. to recognise the harm done to the victim of the crime and the community.

THE NATURE OF THE DUTY

The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training, instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act.
The duty required the defendant to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34].
The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.
The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.
In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out three reasons why sentencers should have particular regard to the maximum penalties provided by statute. Their Honours stated: '…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.'

SENTENCING PRINCIPLES

The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3A of the Act.
The court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis": Markarian (supra).
The approach to sentencing has been identified by Russell J in SafeWork NSW v HCM Building Pty Limited [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 judgment without any attempt to state precisely how any given factor has influenced the judgment.'
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89].
The seriousness of the risk, its foreseeability and the ease or difficulty of removing the risk are primary factors used by the court in determination of the relevant penalty. The potential consequences of the contravention and any aggravating factors will also be relevant.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duties of the defendant require that they ensure that the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors. The court 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 primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.
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 at [714].
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 v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.
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 Limited & Anor (No.3) [2005] NSWIRComm 61.
In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows: '[34] The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against 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 on assessment of all those factors.' ….. '[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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.' ….. '[53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 mitigating steps could have been taken.' (my emphasis)
The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.
The defendant accepts that the risk of death or serious injury as a result of a grass fire at the Caroona Feedlot was reasonably foreseeable as there were two prior instances of grass fires there in November 2016.
JBS accepts that it did not adequately respond to this risk of injury by failing to take reasonably practicable steps that are particularised in paragraph 15 of Annexure A to the Amended Summons.
The relevant factors in determining the defendants culpabilities are: 1. The incident occurred when a fire started behind a tractor and mower conditioner being driven by Mr Nicholls when he was mowing kikuyu at the Caroona Feedlot. At the same time, the machine formed the mown grass into a windrow in preparation for raking and bailing. An attempt to extinguish the fire by Mr Nicholls proved futile, so too did attempts by Ms Wippell and Ms Radcliffe; 2. Mr Ranclaud was requested by Mr Nicholls to assist fighting the fire. Mr Ranclaud drove his front-end loader to the fire scene and commenced to make a fire break, driving it into the smoke to do so. His front-end loader emerged out of the smoke with burning grass and small flames under it. Mr Ranclaud then drove back into the smoke at which point the front end loader disappeared; 3. Mr Ranclaud walked out of the smoke without shoes, suffering burns with his clothing having been burned off. Tragically, Mr Ranclaud died two days later in the Royal North Shore Hospital having suffered severe burns to 90% of his body; 4. In the circumstances of this case, I accept that the risk was not reasonably foreseeable when assessed objectively, but was a risk that was known to the defendant. 5. Nonetheless, the circumstances posed a significant risk to Mr Ranclaud, and the other workers. It was known to the defendant as there had previously been two separate fires at this feedlot some three months previously. Importantly: 1. the two previous fires occurred in the same circumstances as the present case i.e. behind a tractor and mower conditioner when mowing crops; 2. the tractor and mower conditioner were also being operated by Mr Nicholls; and 3. the two previous fires were extinguished by fire extinguishers and fire beaters. 1. In response to that known risk, the defendant did not alter its processes or practices. It kept no record of the previous fires, did not conduct any risk assessment, nor update its emergency plan, and held no meetings with its workers about the fires. The emergency plan that existed as at the date of the incident only provided instructions to workers about fires in, or near, buildings. It was silent as to grass fires; 2. Even though the JBS workers present at the fire scene held positions of authority in terms of response (Mr Nicholls was chief fire warden, Ms Wippell was deputy chief fire warden, and Ms Radcliffe was fire warden), without any formalised documented policies and training and instruction, those workers were left to do their best to fight the fire; 3. Notwithstanding that Mr Nicholls was the chief fire warden for the workplace and the feedlot manager, the defendant provided him with no training, instruction or information about the minimising the potential for fires to ignite during mowing or harvesting. Similarly, Mr Ranclaud and the other workers had not been provided with any training, instruction or information about how to respond to or fight a grass fire, and no one at the fire scene had any formal fire-fighting experience or training; 4. The steps taken after the incident indicate that the defendant has taken significant measures so as to ensure the safety of workers. Specifically, the defendant has given a directive that the workers are not to attempt to fight fires, but to call in the Rural Fire Service. For that reason the defendant has not provided appropriate PPE to the workers, as that would undermine the policy that the workers are not to fight fires.
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 per Latham J at [17]-[18].
The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00 which reflects the legislature's view of the seriousness of the offence.
By its plea, the defendant has, however, conceded that there were steps which, in all the circumstances of the incident were reasonably practicable, and if taken, would have reduced the risk.
I accept that this offence falls within the mid-range of offending.

DETERRENCE

In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
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
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally 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 Limited v WorkCover Authority of NSW [200] NSWIRComm 71; (2000) 49 NSWLR 610: '[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.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons working in or around large farm machinery and in fields of dry grass.
Similarly, general deterrence can be appropriately used to direct industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of farm machinery in an industrial context.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
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 Act very seriously. 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 factors.
In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.'
In these circumstances I find that the need for specific deterrence is also a feature, given that the defendant remains in the industry and continues to operate the cattle feed lots in a similar fashion to that which was being performed as at the date of the incident. However, given the significant changes that have been made since the incident and the defendant's prior record, I accept that the need for specific deterrence is minimal.

AGGRAVATING FACTORS

Tragically, Mr Ranclaud lost his life in the incident. The suffering he must have experienced in the few days before he passed must have been horrendous.
In a Victim Impact Statement dated 7 October 2020, Mr Ranclaud's family, and in particular the statement of his sister Heather, detail that the family's sense of grief and loss is inconsolable. This is understandable. The senseless death of a very loved man is something that the family may never get over. I also appreciate their despair that although the incident occurred during the working day, the family were not contacted until late in the evening, depriving the family of being with Mr Ranclaud before he was transferred to hospital and before he was placed in an induced coma.
The fact that there had been two previous fires in similar circumstances in the three months prior to this incident ought to have put the defendant squarely on notice of the risks to their workers.

MITIGATING FACTORS

Section 21A(3) of the Sentencing Act sets out the mitigating factors relevant to the determination of a sentence. What is required for a mitigating factor under s 21A(3)(e) is that the offender does not have any record of previous convictions or "any significant record of previous convictions". I note that the defendant does not have a record of previous convictions.
The affidavit of Mr Mark Peter Doe of 7 October 2020 was read and became Exhibit A. Mr Doe is the Group Safety Manager of the Defendant. He expresses remorse and contrition on behalf of the defendant. I accept that this is genuine. A letter signed by all the board members of the defendant expressing such remorse is attached to the affidavit. I further note that the defendant does wish to improve its work practices: s 21A (3)(i) of the Sentencing Act.
I accept that having regard to the significant steps taken by the defendant subsequent to the incident, in particular the directive that workers are not to attempt to fight fires, the prospects of the defendant's rehabilitation are good - s 21A(3)(h) of the Sentencing Act, and that the defendant is otherwise of good character: s 21A(3)(f) of the Sentencing Act.
The defendants entered a plea of guilty reasonably early, and I accept that they ought be afforded the conventional 25% discount based on the utilitarian value of the plea: s 22 of the Sentencing Act.
I accept that the defendant makes a significant contribution to the local communities (s 21A(3)(f) of the Sentencing Act) by sponsorship of the following initiatives: 1. an annual fundraiser for the Spring Ridge Primary School; 2. an annual fundraiser for the Spring Ridge Development Committee; 3. an annual academic achievement award at Quirindi High School; 4. local sporting clubs; and 5. the Quirindi Branch of Children with Special Needs.
I accept that the defendant has co-operated with the SafeWork investigation and has co-operated with the prosecutor: s 21A(3)(m) of the Sentencing Act.
I further note that following the incident, the defendant took steps to support Mr Ranclaud's family, and that after Mr Ranclaud passed, at the suggestion of his family, the defendant made a donation to the Kolling Foundation (now the NORTH Foundation) which is a medical research fund that supports RNSH where Mr Ranclaud was treated.
The appropriate fine is $400,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine is $400,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. I accordingly order the defendant pay a fine of $300,000.00. 4. Pursuant to s 122 (2) of the Fines Act 1996, 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant is to pay the prosecutor's costs agreed in the sum of $40,000.00.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2020

Work Health and Safety Regulation 2011(NSW)

LEGAL OBLIGATIONS AND GUIDANCE MATERIALS Work Health and Safety Regulation 2011(NSW)

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