SafeWork NSW v Zammit Ham & Bacon Curers Pty Ltd

District Court of NSW|2020-04-07

Judgment

On 14 October 2019, Zammit Ham & Bacon Curers Pty Ltd ('the defendant') pleaded guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (NSW) ('the Act') by failing to comply with the health and safety duty imposed upon it by section 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant's business or undertaking and in doing so exposed workers to a risk of death or serious injury.
This offence carries the maximum penalty of $1,500,000.00.
The contravention arises from an incident on 7 September 2017 at the defendant's worksite located at 2 Nirvana Street, Pendle Hill ('the worksite').
At that time and place there were workers working in the defendant's business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Mr Joseph Singarasa ('Mr Singarasa') who suffered injuries when a forklift he was reversing toppled over from a loading dock onto the ramp below ('the incident'). At that time there was no edge protection on the loading dock.
The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below. The defendant relied on the affidavit of Mr Anthony Louis Zammit, the sole director of the defendant, sworn 24 March 2020 (Exhibit B).

BACKGROUND

The defendant is a registered corporation conducting a business or undertaking that involves the processing, packaging and transporting of meat products for wholesale and retail trade.
The defendant operates its business at the worksite.
As at September 2017, the defendant employed approximately 200 employees including Mr Singarasa as a Forklift Truck Operator. Mr Singarasa commenced his employment with the defendant on 8 May 2015.
As at September 2017, the defendant owned two Mitsubishi Forklift Trucks which were used to move meat products and other material at the site.

THE LOADING DOCK

The site contained a factory warehouse, a yard and a loading dock where trucks containing meat products and other materials were loaded and unloaded on a daily basis.
The loading dock measured approximately 5 metres in width, 20 metres in length and 1 metre in height. The loading dock was located along the outer wall of the factory warehouse and a yellow line was painted along the edge of the loading dock. The warehouse was accessed from the loading dock by way of a number of roller doors.
A concrete ramp, measuring approximately 4 metres in width and 7 metres in length and located on one side of the loading dock, provided vehicular access to and from the factory yard to the loading dock and warehouse. The ramp ran parallel to the loading dock and at its highest point measured approximately 1 metre.

THE INCIDENT

On 7 September 2017, at approximately 1:30pm, Mr Singarasa was operating Mitsubishi Forklift Truck (Model FGE20CNT) with serial number F34-30065 ('the forklift') on the loading dock. Mr Singarasa held a valid licence to operate a forklift and had around 6 years' experience in driving forklifts. Mr Singarasa was not wearing a seatbelt.
Mr Singarasa drove the forklift which was holding a pallet of processed meat on its tines onto the loading dock. Mr Singarasa drove the forklift in a forward direction along the loading dock, with the warehouse on his left side and the edge of the loading dock on his right. Mr Singarasa stopped the forklift, lowered and released the pallet to the surface of the loading dock, and began reversing the forklift several metres and steering in a clockwise direction in preparation to perform a 3-point turn.
As Mr Singarasa manoeuvred the forklift, the right rear wheel fell off the edge of the loading dock and onto the surface of the concrete ramp. The forklift toppled and Mr Singarasa was dislodged from the operator's seat and became trapped between the surface of the concrete ramp and the forklift.
Mr Singarasa's co-worker, Prasad Durairaj, and a plant operator were nearby in the yard and came to Mr Singarasa's assistance. The workers used an excavator to lift the forklift and Mr Singarasa was able to be pulled free.
Mr Singarasa was conveyed to Westmead Hospital and underwent surgery for a sigmoid colon tear and retroperitoneal haematoma.

SYSTEMS OF WORK BEFORE THE INCIDENT

Prior to the incident, a yellow line was painted along the edge of the loading dock as a visual warning to pedestrians and forklift operators to the risk of falling. No physical barrier to prevent the risk of falling from the edge of the loading dock was installed.
The defendant had a pre-existing commitment to work health and safety as it had a number of Work Health and Safety ('WHS') policies that involved discussions and tool box talks. Seatbelts were fitted in the forklifts and personal protective equipment ('PPE') was issued to workers utilising the loading dock.
However, the defendant had no documented procedures, policies or traffic management plans regarding the safe operation of forklifts to eliminate or control risk associated with the operation of forklifts at the site. The defendant had not conducted a risk assessment in relation to operating mobile plant near an unprotected edge.
The defendant did not provide any adequate information, instruction or training to workers in respect of the operation of the forklift, and in particular that:

the forklift was not to be operated in close proximity to the unprotected edge;
the area in which the forklift was to be operated was to be inspected by workers and any possible risks of the forklift tipping over were to be identified;
workers were to raise such risks to the defendant's management; and
workers were not to operate the forklift until such risks were adequately eliminated or controlled.

Whilst there were CCTV cameras operating at the loading dock and the ramp, the defendant did not adequately supervise the workers whilst they were operating the forklifts to ensure that they were being operated in a safe manner.

Work Health and Safety Regulation 2017

The defendant had general obligations under Part 3.1 of the Work Health and Safety Regulation 2017 ('the Regulation') as follows: '34 Duty to identify hazards A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety. 35 Managing risks to health and safety A duty holder, in managing risks to health and safety, must - (a) eliminate risks to health and safety so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety - minimise those risks so far as is reasonably practicable. 36 Hierarchy of control measures (1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following - … (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. … 37 Maintenance of control measures A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains - (a) fit for purpose, and (b) suitable for the nature and duration of the work, and (c) installed, set up and used correctly. 38 Review of control measures (1) A duty holder must review and as necessary revise control measures implemented under this Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.'
The defendant had specific duties in relation to management of risks of falling under Clause 78 of the Regulation, which provides: '78 Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person. … (2) Subclause (1) includes the risk of a fall - (a) in or on an elevated workplace from which a person could fall, or … (c) in the vicinity of an edge over which a person could fall, or … (3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction. … (4) A person conducting a business or undertaking must provide safe means of access to and exit from - (a) the workplace, and (b) any area within the workplace referred to in subclause (2). … (5) In this clause, solid construction means an area that has - (a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and (b) barriers around its perimeter and any openings to prevent a fall, and (c) an even and readily negotiable surface and gradient, and (d) a safe means of entry and exit.'

Code of Practice: How to manage work health and safety risks

The SafeWork NSW Code of Practice 'How to Manage Work, Health and Safety Risks' (December 2011) ('the SafeWork Code of Practice'), which provides guidance on identifying, assessing, controlling and reviewing risks in the workplace was available to the defendant before and at the date of the incident.
Chapter 3 of the SafeWork Code of Practice entitled 'How to Assess a Risk' provides detail of when and how to undertake a risk assessment.
Chapter 4 of the SafeWork Code of Practice entitled 'How to Control Risks' provides the hierarchy of risk control, and how to develop, implement and maintain effective control measures.
The SafeWork Code of Practice identifies a four-step risk management process (pages 4 to 5) which includes:

identifying what could cause harm;
assessing the nature of harm that could be caused, its seriousness and likelihood of occurring;
implementing the most effective control measure that is reasonably practicable in the circumstances; and
reviewing control measures to ensure they are effective.

Code of Practice: Managing the Risk of Plant in the Workplace

Prior to and at the time of the incident, the SafeWork NSW Code of Practice 'Managing the Risks of Plant in the Workplace' (July 2014) ('the Plant Code of Practice') was available to the defendant.
The Plant Code of Practice provided:

that a person conducting a business or undertaking ('PCBU') must provide workers and other persons who are to use a plant with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of the plant (page 16);
that a PCBU's management must take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may assume that unsafe work practices are acceptable (page 16);
that certain types of plant, such as forklifts, require the operator to have a high-risk work licence before they can operate the plant (page 17); and
a hazard list checklist template to be used by a PCBU in managing risks associated with plant (page 35). The hazard checklist includes a section addressing the risk of fall from height.

Australian Standard 2359: Powered Industrial Trucks

Prior to and at the time of the incident, Australian Standard 2359: Powered Industrial Trucks (2013) ('the AS') was available to the defendant. Part 2 of the AS entitled 'Operations' provides operational standards for powered industrial trucks including forklifts.
The AS specifies requirements for self-propelled industrial trucks, such as forklifts, including:

The operation of the vehicles (sections 2 to 3);
Procedures regarding site conditions and the design of workplaces in which the vehicles are used (section 5); and
The maintenance, repair and modification of the vehicles (section 6).

Safety Alert: Working with or around mobile plant

The WorkCover Safety Alert 'Working with or around Mobile Plant' was available to the defendant as at and prior to the time of the incident. It highlighted the risks associated with mobile plant in the workplace and provided advice on appropriate controls for traffic management.

Safety Guide for Forklift Operators

The defendant had available to it, as at and prior to the incident, a SafeWork NSW brief guide 'Toolbox Talk: Take Forklifting Safety Seriously', which provided information and guidance on how to conduct toolbox talks with workers about the safe operation of forklifts, including a guided toolbox talk for supervisors.

SYSTEMS OF WORK AFTER THE INCIDENT

Following the incident, SafeWork issued an Improvement Notice to the defendant. Subsequent to the incident, the defendant has taken the following steps: 1. Installed a fall protection barrier (guardrail) along the edge of the dock from which the forklift fell. The barrier was installed the day following the incident at a cost of approximately $2,400.00. It took 1-2 hours to install. 2. Contracted an external provider to retrain and reassess the company's forklift operators, and the defendant's WHS generally.

CONSIDERATIONS

I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing.

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 notion of reasonable practicability is informed by the considerations found in section 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: section 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.
The defendant's duty was to exercise due diligence to ensure that the business complied with its duty under section 19(1) of the Act. Its duty was to take "reasonable steps" to ensure the business had, and implemented, processes for complying with its duty: section 27(5) of the Act. The defendant failed to take reasonable steps to identify and manage the risk.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duties of the defendant require that it 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.
In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 9 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.'
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.
In his affidavit (Exhibit B), Mr Zammit explains that he is the managing director of the defendant and has been so since 2004. He has been the sole director since 2010 and his role includes, but is not limited to, having oversight and control of the business operations at the site, the sales and strategy of the defendant and its WHS obligations.
Mr Zammit attends the site usually 7 days a week and performs daily site walks, undertaking safety observations and responds to unsafe activities. Staff members report to section heads or directly to Mr Zammit about WHS matters.
I note that the defendant is a family owned company, with its core business being the manufacture of small goods including meat products (such as ham, bacon and salami). Mr Zammit is largely responsible for the day-to-day management and I accept that the improvements that he has made since the incident indicate that the potential for further injuries has been somewhat reduced.
I accept that significant changes have been undertaken at the defendant's premises since the incident. The photographs tendered evidence that a redesign was performed. There have also been changes with regards to the introduction of a traffic management plan, and induction of workers into the plan. A third party has also been engaged to provide further safety training, and this is refreshed annually.
However, the risk was clearly foreseeable, which is acknowledged by the plea, as the only indication that the drop was approaching was a faded yellow painted line near the loading zone which was clearly inadequate. There was nothing physically to stop the forklift going over the edge at all. The steps to remedy the situation were easy, quick to perform and inexpensive.
I accept that the matter falls within the lower end of the mid-range.

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 section 3A(b) of the Sentencing Act.
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) 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 at 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. Forklift trucks and their use create a significant risk of injury to workers in a variety of industries, and the operation and conduct of operators of those forklifts must be properly and appropriately assessed as to the risk of operation not only to the operator, but to those working around the forklift, and appropriate action must be taken to deal with the assessed risks.
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 forklifts 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.'
The defendant continues to operate the business in the same way as it did when the incident occurred. Whilst the defendant has put a barrier to overcome the specific risk, the subject of the incident, specific deterrence must play a role in reminding the defendant of the need to pay particular attention to the use and operation of mobile machinery in and around its premises.
Having regard to the steps that have been taken since the incident, in my view, the defendant's prospects of rehabilitation are good.

AGGRAVATING FACTORS

When the incident occurred, Mr Singarasa was dislodged from the operator's seat and became trapped between the ramp's surface and the vertical column of the forklift's overhead structure. As a consequence, he suffered a sigmoid colon tear and retroperitoneal haematoma. This must have been a terrifying ordeal for him. He required surgical intervention and was off work for some time.
Fortunately, Mr Singarasa returned to work on or about 12 February 2019 and resumed his pre-injury duties on or about 2 July 2018. I note that the defendant paid the full wages of Mr Singarasa until the workers compensation payments commenced.

MITIGATING FACTORS

The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea: section 21A(3)(e) of the Sentencing Act.
By its plea of guilty to the summons, the defendant has acknowledged its failure to take reasonably practicable measures to eliminate or minimise the risk.
The defendant does not have any antecedents: section 21A(3)(e) of the Sentencing Act.
The defendant co-operated with the SafeWork investigation and co-operated with all statutory notices issued by SafeWork NSW, including two Prohibition Notices and six improvement notices: section 21A(3)(m) of the Sentencing Act.
The defendant through its director has shown remorse and I accept that as genuine: section 21A(3) of the Sentencing Act.
I accept that the defendant was of good character prior to the incident: section 21A(3)(f) of the Sentencing Act. The business had been operating for some 66 years and, given the nature of the works performed and the number of employees, that is a significant and enviable record. I accept that there was no deliberate conduct on behalf of the defendant, and that the defendant's prospects of rehabilitation are good.
Whilst an application under sections 6 of the Fines Act 1996 (NSW) was not made, Counsel for the defendant drew my attention to the fact that the defendant's business is heavily involved in the food services sector which includes supplying restaurants, cafes and clubs with small goods. I accept that the COVID-19 crisis will have a significant impact on the defendant's business, as most of the customers to whom the defendant supplied have had to shut down their businesses as a consequence of COVID-19. I also accept that the likely trajectory is that this will continue into the future, and that the defendant will suffer a significant downturn in sales and an increase in bad debts. I further accept that this will have a significant effect on the defendant's business and the staff employed by it. I have taken these matters into consideration in coming to my decision.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the defendant would be $100,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. I accordingly order the defendant to pay a fine of $75,000.00. 4. 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant is to pay the prosecutor's costs as agreed in the sum of $25,500.00.

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: 08 May 2020

Work Health and Safety Regulation 2017(NSW)

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