SafeWork NSW v N Moit & Sons

SafeWork NSW v N Moit & Sons - [2023] NSWDC 205 - NSWDC 2023 case summary — Zoe

[4]

Respirable crystalline silica

SafeWork Australia released the Workplace Exposure Standards for Airborne Contaminants on 22 December 2011. That document contained a list of workplace exposure standards ('WES'). The WES for quartz respirable dust was 0.1 milligrams per cubic metre of air ('mg/m³') which is a time-weighted average for an 8-hour work shift. On 1 July 2020, the WES for quartz was halved to 0.05 mg/m³.
Between 28 January 2014 and April 2021 ('the relevant period'), the defendant had a duty to ensure that no persons at its workplace were exposed to an airborne substance that exceeded its WES pursuant to cl 49 of the Work Health and Safety Regulation 2011 (NSW) ('the 2011 Regulation') and cl 49 of the Work Health and Safety Regulation 2017 (NSW) ('the 2017 Regulation').
Masonry waste material such as concrete and bricks contain approximately 30% crystalline quartz, and upon being crushed, create very fine particles known as the 'respirable fraction' of dust, which in turn generate respirable crystalline silica dust ('RCS').
Tasks that involve crushing concrete and bricks can generate substantial amounts of RCS, which can be inhaled by workers. Therefore, workers who perform tasks associated with the sorting and crushing of masonry waste can be at risk of serious illness from the dust disease 'silicosis'.
Silicosis is an occupational lung disease known to be caused by inhalation of RCS dust. It is a serious illness that can progress to severe disability including loss of lung function, potentially resulting in the requirement of a lung transplant and can often lead to the development of other serious illnesses and ultimately result in premature death.
Advice on the selection, use and maintenance of respiratory protective equipment ('RPE') is contained in the Australian Standard AS/NZS Selection, use and maintenance of respiratory protective equipment 1715:2009 ('AS/NZS 1715:2009'). Section 3.55(i) of the AS/NZS 1715:2009 provided that RCS is a known airborne contaminant which may cause immediate or long-term health effects depending on the level of exposure and the duration of the exposure.
As such, suitable RPE is required whenever activities are undertaken that could generate RCS, for example, the sorting and crushing of masonry waste.

[17]

Objective seriousness of the offence

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 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.'
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The duty of the defendant requires that it 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.
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 (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
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 ('Capral Aluminium') at [81].
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.
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 [31].
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 [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: '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.'
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.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [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] NSWCCA 272.
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).
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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
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 at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

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 [34];
The availability of steps to eliminate or minimise the risk: Nash v Silver City [34];
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 [34] and [53];
Whether the risk was known or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: '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.'
The following matters are relevant to determining the culpability of the defendant: 1. The defendant did not have any systematic assessment of risks to its workers health during the relevant period, and in particular it did not conduct any quantitative assessment of the airborne RCS dust levels in the workplace; 2. The systems of work in place in the relevant period required Mr Sharif to perform his work in close proximity to the crushing machinery for at least half of the workday; 3. No provision was made for the materials to be separated out prior to being placed in the crushing machinery and/or the associated hopper; 4. The SWMS in place made no reference to dust inhalation as a potential hazard, and whilst the defendant did have in place a SWMS in relation to the crusher that made reference to dust inhalation, it did not apply to labourers, and thus Mr Sharif was not trained in the crusher SWMS. In any event these documents were not in Farsi so as to allow Mr Sharif to understand them; 5. There was a very real risk to the health and safety of the defendant's workers, in particular Mr Sharif, and the measures implemented to address that risk in a way to ensure the health and safety of workers were manifestly deficient. 6. Mr Sharif was not instructed in respect of the requirement to be clean shaven in order to increase the efficacy of the P2 mask he had worn for most of the relevant period. Additionally, fit-testing was not conducted in relation to those masks; 7. The defendant did not have in place a program to monitor the RCS exposure in the relevant period, and Mr Sharif undertook personal air monitoring in relation to the RCS on 4 June 2021 and recorded 0.14mg/m3 which exceeded the <0.05mg/m3 for an 8 hour TWA; 8. Mr Sharif has not as yet required any time off work due to illness or incapacity as a consequence of inhaling any airborne RCS, and continues to be employed by the defendant and undertake work at the facility. Nonetheless, the risks as described in paragraphs 14, 15 & 16 can result in serious illness and incapacity. 9. Mr Sharif's work garments regularly became contaminated with significant quantities of dust, and the defendant did not have a laundry or other program in place to prevent workers taking contaminated clothing home; 10. Despite the use of a water cart and an external sprinkler system to wet down the work area, these measures were not enough to achieve adequate suppression of RCS dust. In any event, the external sprinkler system was not regularly operational and the water cart was not used in a systematic way; 11. Apart from a tool box meeting on 15 April 2019, that included a discussion of silicosis, the defendant failed to provide adequate information, instruction and training to its workers in connection with the hazards, risks and control measures associated with the crushing of masonry waste containing crystalline silica; 12. As discussed previously, which is summarised from the Statement of Facts, papers were published by the relevant experts as to the relevant control principles that applied to RCS for all mechanically generated dust exposures, which included straightforward control measures to minimise exposure to RCS including the use of water suppression, training, and the use of PPE; 13. Further, papers were published and guidance material was readily available to inform the defendant of the significant risks to the health of workers exposed to silica dust as a consequence of the defendant's business activities. I accept that the risk was readily foreseeable; 14. The control measures that ought to have been implemented were not unduly costly or labour-intensive. The defendant accepts that the control measures at [9] of the Summons were reasonably practicable (Defendant's written submissions at [18]); 15. The defendant accepts that the degree of foreseeability of the risk to health and safety was high, and that whilst the defendant had regard to the risk of inhalation of dust in relation to the workers undertaking the crusher operations, it did not consider the risk of the general labourers, who, from time to time, worked in the vicinity of the concrete crusher plant at the site (Defendant's written submissions at [14]); 16. The defendant accepts that the systems in place with regard to general labourers were deficient, and I accept that it had taken steps during the period of the offence that went to addressing the risk, including the following (Defendant's written submissions at [20]): 1. Provision of P2 disposable and half-face masks, which were required to be used by employees when working in the vicinity of the crushing operations; 2. Use of water-based dust suppression by way of water cart and external sprinkler system; 3. Employee health monitoring undertaken through the iCare Dust Diseases service for all employees; and 4. The development and use of a SWMS for the operation of the concrete crusher machine at the site. 1. Nonetheless, the defendant accepts that the gravity of the potential risk to health and safety was serious. However, the defendant submits that the 'nature and quality' of the criminality of this offence should be seen as less than a defendant which fails to have any system at all. I accept that submission.

[18]

Deterrence

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.
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).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 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.'
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 working in an industry wherein mechanically generated dusts expose workers to the inhalation of such dusts.
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. 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.
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.
I accept that the prospects of rehabilitation of the defendant are very good, however, the need for an element of specific deterrence is still necessary in these circumstances.

[20]

Mitigating Factors

The defendant has not been subject to any prior convictions under work health and safety law - ss 21A(3)(e) of the Sentencing Act.
I accept that the defendant is a good corporate citizen of good character and based on the contents of Mr Moit's affidavit 3 May 2023 (exhibit 1), has made significant charitable donations as an active sponsor of the community: s 21A (3)(f) of the Sentencing Act.
I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
I accept that since the incident, the defendant has implemented many measures to minimise the risk, at a significant cost to the defendant. These include:

The purchase of full-face powered air purifying respirator masks for all workers operating the relevant equipment;
contracting a third-party provider, Cleansafe Environmental Solutions, to perform onsite monitoring every 6 months, and Rapid Induct to conduct Asbestos and Silica Dust awareness training for all workers;
utilising systematic water-based dust suppression at the site;
utilising a 24-hour sprinkler system;
modifying the screen at the end of each belt to install water sprayers to suppress dust;
providing disposable protective suits;
reviewing and updating relevant SWMS and reducing the time of each shift and thus potential exposure to dusty environments, and having an independent specialist work health and safety consultant for advice and review; and
specific training program for directors and senior management of the company with regard to work health and safety laws, duties and obligations.

These steps, to my mind, demonstrate the defendant's acceptance of its breach, and has put in place a set of procedures to ensure they comply with the defendant's duties under the WHS Act.
I accept the defendant is unlikely to reoffend and the prospects of rehabilitation are very good.
The defendant co-operated with SafeWork during the investigations: s21A(3)(m) of the Sentencing Act.
Mr Moit's affidavit of 3 May 2023 (exhibit 1) demonstrates the acceptance of responsibility for the defendant's failures, and that the defendant through its senior officer and director, Mr Moit, is deeply remorseful and contrite. The defendant also expresses a sincere apology: s 21A(3)(i) and s 22 of the Sentencing Act.
The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
Having taken all of those matters into consideration, the appropriate fine for the defendant is $100,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea.

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