SafeWork NSW v Steggles Pty Ltd - [2024] NSWDC 217 - NSWDC 2024 case summary — Zoe

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SafeWork NSW v Steggles Pty Ltd

[2024] NSWDC 217

District Court of NSW|2024-06-04

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-06-04

Catchwords

(1988) 166 CLR 51 BC v R [2020] NSWCCA 329 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 Chiang v R [2016] NSWCCA 45 Cowling v R [2015] NSWCCA 213 Filippou v The Queen [2015] HCA 29
(2015) 256 CLR 47 KMC v Director of Public Prosecutions (SA) [2020] HCA 6

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 BC v R [2020] NSWCCA 329 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 Chiang v R [2016] NSWCCA 45 Cowling v R [2015] NSWCCA 213 Filippou v The Queen [2015] HCA 29(2015) 256 CLR 47 KMC v Director of Public Prosecutions (SA) [2020] HCA 6(2020) 267 CLR 480 Leach v The Queen [2007] HCA 3(2007) 230 CLR 1 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited(2006) 66 NSWLR 566 R v Olbrich [1999] HCA 54(2020) 267 CLR 494 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14

Judgment (52 paragraphs)

[1]

[24]

The Nature of the Work Being Undertaken by the Injured Worker Did Not Involve, Nor Contemplate, Any Contact or Involvement Otherwise with the Conveyor Line and/or Hock Cutter

Ms Moore stated that Mr Gatabishwa's work on the day of the incident did not require him to make any contact with the Conveyor Line or Hock Cutter. Rather, Mr Gatabishwa's work was limited to cleaning the floor and surrounding areas of the plant. Ms Moore annexed Mr Gatabishwa's role description to her affidavit.
Mr Gatabishwa was trained to not make contact with any operating plant and signed a commitment to avoid such contact. Mr Gatabishwa's signed commitment and copies of his training and competency verification records were annexed to Ms Moore's affidavit.
Ms Moore said that Mr Gatabishwa's competency and proficiency were demonstrated through his training and competency questionnaires and practical demonstrations. Records showing the practical verification of Mr Gatabishwa's competencies were annexed to Ms Moore's affidavit.
Mr Gatabishwa was also trained in the handling of birds being processed for human consumption. This training included instruction that birds should only be handled in limited circumstances, with the "Dropped Meat Policy" prohibiting people re-hanging chickens for human consumption onto the shackles. Ms Moore annexed to her affidavit the instruction regarding handling birds and the "Dropped Meat Policy".
Ms Moore said that workers performing cleaning tasks were not authorised to physically handle birds on the Conveyor Line and that not all workers at the site could access the Evis Room.
Steggles applied strict restrictions on staff being near one another and moving between areas of the facility. These restrictions were because of food safety quality requirements (that still apply now) but also because of the WHS separation controls in place in response to the COVID-19 pandemic. The "Good Manufacturing Policy" and the "Beresfield Staff Traffic Movement" document dated 5 August 2019 applied at the date of the incident and were annexed to Ms Moore's affidavit.

[33]

Steggles' Safety Management System

Steggles developed and implemented an extensive safety management system, called the "BSafe System", before the incident.
The BSafe System was certified to the Australian/New Zealand Standard AS/NZS 4801, Occupational Health and Safety Management Systems, 2001 between 2015 and 2022. Now the BSafe System is certified to the International Organisation for Standardization ISO 45001 Occupational Health and Safety Management Systems - Requirements with Guidance for Use, 2018.
The Baiada WHS&E Policy is the apex document in the BSafe System. The WHS&E Policy sets out Baiada's WHS commitment, direction and objectives. The WHS&E Policy is annexed to Ms Moore's second affidavit.
Ms Moore explained that there are 56 national "Standards" that sit below the WHS&E Policy. Those Standards set out Baiada's requirements and provide instruction on WHS matters.
The Standards are issued at a national level for each individual facility to implement. Site-specific implementation procedures for the Standards were developed for the site. Additionally, various plans, checklists, templates and inductions specific to the site were in place.
Each site's manager, in consultation with the WHS coordinator, is responsible for implementing the Standards. The WHS coordinators report to Ms Moore.
Ms Moore said in her second affidavit that each WHS coordinator either has, or is in the process of obtaining, tertiary qualifications and is specifically trained in the BSafe System by their national team manager or other WHS team members.
In 2020 there were 16 employees in the WHS team. This has increased now to 19. There are also 10 other WHS administrative staff who assist the WHS team.
Ms Moore listed features of the BSafe System, stating that it provides for and includes: 1. Extensive and multi-faceted consultation mechanisms. 2. Extensive training delivered in written format and by practical instruction. 3. Practical verification of competency. 4. Documentation by team members that they would not place hands in any operating machinery. 5. Preventative machine maintenance and pre-start machine checks. 6. Developing and implementing task instructions, including instructions that people do not place their hands near blades in operation. 7. A requirement that equipment must only be operated by trained machinists. 8. Annual external auditing of the BSafe System by British Standards International to ensure that the system retains its accredited standards. 9. Biannual site audits by a national WHS coordinator, assessing the implementation of the BSafe System and reviewing the site's WHS management plan and compliance with accredited standards.
Baiada also engages third party certification bodies to conduct Sedex Member Ethical Trade Audits which cover the four pillars of labour practices - business ethics, WHS and environmental management. Ms Moore said that these audits have occurred across 12 of Baiada's main manufacturing sites at varying frequencies but typically on an annual or biannual basis.
Steggles' food safety and quality management system is independently accredited as complying with international and domestic food safety laws and International Organisation for Standardization ISO 14001, Environmental Management Systems - Requirements with Guidance for Use, 2015 . Steggles also holds a Hazard Analysis and Critical Control Point accreditation.

[40]

Expert Report of Dr Harwood

Dr Thomas Harwood, a Senior Staff Specialist in emergency medicine, provided a report dated 29 February 2024 (DX 3). In par 2.3 of the report Dr Harwood said: "The focus of my review and opinion is on actual events rather than possible ones. Any injury, no matter how trivial, carries with it the risk of complications, such as bleeding or infection that in some circumstances may lead to death. In estimating the risk of death from an injury it is reasonable to consider the following factors. - The site and nature of the injury. - The presence or absence of immediate complications, such as severe haemorrhage. - The age and health background of the patient. - Whether first aid is provided and the timing and quality of definitive health care. In many cases it is not possible to definitively assign the absolute level of risk of death after an injury, but it is reasonable to quantify the relative risk using the factors above."
Dr Harwood reviewed the NSW Ambulance Incident Detail Report, the NSW Ambulance Case Sheet 40255 and the notes of John Hunter Hospital.
In par 4.1 of the report Dr Harwood considered the fact that in hospital Mr Gatabishwa was found to be suffering from Aeromonas scepsis. Dr Harwood noted that this is a bacterial infection which can "cause severe illness and even death in some patient groups". The reported mortality in otherwise healthy patients, such as Mr Gatabishwa, is "below 20%". Dr Harwood concluded that Mr Gatabishwa's risk of death from his infection "was low due to his underlying good health, the infection being quickly diagnosed and promptly treated in a hospital environment".
On p 7 of his report Dr Harwood provided a summary of his opinion as follows: "In summary it is my opinion that it is reasonable to conclude that Mr Gatabishwa had a low prospect of dying from the injury he sustained, with survival being the more likely outcome. I base my opinion on the anatomical site of the injury distal to major vascular structures, especially the radial arteries of the arm and forearm. I also base my opinion on the timely attendance and care by local first aiders, the timely attendance and care by ambulance professionals, the absence of described severe bleeding by ambulance officers on scene, the standing down of a rescue helicopter with its critical care medical team by those ambulance officers and the timely transfer and expert care at a dedicated trauma hospital. Similarly while Mr Gatabishwa developed an Aeromonas infection while in hospital there is no evidence from the notes that this became life threatening and in my opinion it's reasonable to conclude that, with its rapid detection and correct treatment with appropriate antibiotics, the risk of this infection becoming fatal was avoided."
In cross-examination, Dr Harwood conceded that if the amputation of the right hand had occurred in a more proximal location, then arteries could have been severed, leading to significant blood loss and an increased risk of death.

[41]

Whether the Risk was Obvious

Steggles relied upon the first affidavit of Ms Moore (DX 1) and submitted that there was no challenge to her evidence that the risk was not obvious to Steggles or to the industry at large. Further, counsel for Steggles submitted that Inspector Leinasars accepted that if the incident had not occurred before, that would mean that the risk may not necessarily be obvious. Counsel also pointed to the evidence of Ms Pittman (who had worked at Beresfield for 43 years) and Mr Hayford. Both said that it had never occurred to them that they would need to reach up towards the Conveyor Line and the Hock Cutter. It was also submitted that the SafeWork Code did not identify the risk and that the User Manual did not identify the pleaded risk.
I find that the pleaded risk was not obvious because of the following factors set out in DX 1: 1. The work being undertaken by Mr Gatabishwa did not involve, or contemplate, any contact with the Conveyor Line or the Hock Cutter. 2. Mr Gatabishwa had been trained not to make contact with any operating plant. 3. Mr Gatabishwa had been trained in the Steggles' policy that any dropped chickens should not be re-hung onto the shackles. 4. There was no possibility of a worker tripping or falling into the Hock Cutter. 5. The Conveyor Line was at a height and angle placed away from the path of workers. 6. There was an automated system to capture one-legger birds to be re-attached. 7. The designated area for re-attaching one-legger birds was visible to all workers and was away from the area of the Hock Cutter. 8. No similar incident had ever occurred involving the Conveyor Line or the Hock Cutter. 9. Steggles was unaware of any similar incident occurring within the wider poultry processing industry. 10. The Conveyor Line and the Hock Cutter operated for 18 hours per day, 4 days per week. It processed 130,000 birds per day. It had operated continuously for many years.
I find that the evidence has not established beyond a reasonable doubt that the pleaded risk was obvious.

[45]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "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 the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
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. 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 Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "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 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 on assessment of all those factors."
Further at [42] his Honour continued: "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 [event] 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 little, if any, costs."
At [53] his Honour 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 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. The risk was actually known by Steggles. It had imposed administrative controls many years before to minimise, but not eliminate, the risk (a matter properly conceded by counsel for Steggles in oral submissions). Further, Steggles should have known of the risk by reason of guidance material. 2. However, for reasons set out above, the risk was not an obvious risk. 3. The likelihood of the risk occurring was very low, given the evidence that the machinery had operated for years without incident, and that such an incident was unknown in the wider poultry processing industry. 4. The evidence has established that Mr Gatabishwa was exposed to the risk, but there is no evidence to prove beyond a reasonable doubt that any other worker was so exposed. 5. The potential consequences of the risk were death (contrary to the submissions for Steggles) or serious injury. 6. There were steps available to Steggles to eliminate the risk, by the engineering solution of gating off the Hock Cutter area. Such a measure was installed on a temporary basis on the day of the incident, and on a permanent basis within days of the incident. 7. There was no evidence that taking the appropriate reasonably practicable steps imposed any significant burden or inconvenience upon Steggles. 8. The harm done to Mr Gatabishwa was most serious. He has never worked again. 9. The maximum penalty for the offence is a fine of $1,766,130 which reflects the legislature's view of the seriousness of the offence. 10. In oral submissions, counsel for SafeWork correctly acknowledged that Mr Gatabishwa was injured while carrying out an act that he had been told not to do.
I find that Steggles' level of culpability is in the low range.

[48]

Mitigating factors

Steggles does not have a significant record of previous convictions: s 21A(3)(e) CSP Act. This was properly conceded by counsel for SafeWork.
Steggles is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Steggles has been a company in existence since 1984.
Steggles is unlikely to re-offend: s 21A(3)(g) CSP Act.
Steggles has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has installed an engineering solution which, on all the evidence, should have been in place before this accident occurred.
Steggles has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Gatabishwa was caused by its actions.
Steggles entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Steggles a 20% discount for its plea of guilty for the following reasons: 1. The proceedings first came before the court for directions on 21 November 2022. From that date until September 2023 the matter was going through the Enforceable Undertaking (EU) process. 2. On 11 September 2023 the court directed the matter to stand over to 16 October 2023 for the entry of a plea. A similar direction was made on 16 October 2023. On 27 November 2023 Steggles entered a plea of guilty to the elements of the offence and the matter was set down for hearing. Directions were made in relation to the service of evidence relating to disputed facts. 3. The disputed facts hearing was set down for three days, but the evidence concluded in one day and the oral submissions were received on the morning of the second day. Both sides approached the disputed facts hearing with a view to minimising the areas in dispute and conducting the proceedings efficiently. 4. While Steggles has been unsuccessful in challenging one of the disputed facts, its conduct in pleading guilty promptly after the EU process had concluded, and in narrowing the areas of dispute, resulted in substantial savings of public time and cost.
Steggles gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

SafeWork NSW v Steggles Pty Ltd

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Judgment (52 paragraphs)

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Legislation Cited (4)

Cases Cited (35)