DECISION OF: His Honour Deputy President Lieschke

Work health and safety prosecution - Failure to ensure the safety of employees and other workers, so far as was reasonably practicable - Guilty plea - Director of defendant piloted a single engine aircraft from the workplace for work purposes, including travel to distant worksites and crop spraying - While waiting for a worker to join him in the aircraft the director started its engine - Worker was to be 'hot-loaded' onto the aircraft - While walking around and in front of the aircraft to reach his door the worker was forcefully struck by the propellor multiple times on his right upper limb, with severe consequences - Defendant's only safety control for use of the aircraft was the pilot's discretion - High levels of remorse, contrition and restitution - Held: Fine of $360,000 imposed after 40% reduction for early admission of guilt and contrition - Conviction recorded

Campbell v Zerella Holdings Pty Ltd [2021] SAET 20

Spinks v Zerella Holdings Pty Ltd [2008] SAIRC 57

1. On 11 September 2023 the defendant Parilla Premium Potatoes Pty Ltd operated a single engine Cessna aircraft at its worksite. It did so without any written safe operating procedures or hazard control measures in place. Existing workplace traffic control and mobile plant safety measures were not applied to the aircraft.
2. Mark Pye, the Managing Director of the defendant and one of its two pilots, was then seated at the aircraft's controls and a Parilla employee was seated in the back. They were waiting for Krunal Shah, an employee of a related entity that was also managed and controlled by Mr Pye. They planned to travel to another Parilla worksite.
3. Mr Pye started the Cessna's engine while they waited inside the aircraft for Mr Shah.
4. Mr Shah soon walked over from the defendant's main office. As he walked in front of the aircraft Mr Shah's right arm was forcefully struck multiple times, causing severe life changing injuries.
5. Following an investigation by SafeWork SA the defendant was charged with one offence against s 32 of the Work Health and Safety Act. The defendant was alleged to have breached its primary safety duty to workers at its farming enterprise through operation of the aircraft, including near the hangar, taxiway and airstrip.
6. The alleged uncontrolled hazards from an unsafe work environment were of workers being required to embark and disembark the aircraft while its engine and propellor could be running. The risk of harm was of workers or others being struck by the propellor or the moving aircraft, with death or serious injury resulting.
7. The defendant was alleged to have failed to implement reasonably practicable hazard control measures that would have eliminated the risks of death or serious injury, if always applied and followed.
8. The defendant is described in the amended particular 1.2.2 as having:

Failed to ensure that any areas in which the aircraft operated at the workplace were designated as aircraft operating areas.

Failed to ensure that there were adequate processes and procedures in place for the management of aircraft operations at the workplace, in particular in relation to any interaction between aircraft and workers and/or other vehicles ... ;

Failed to ensure that there were adequate processes and procedures in place for the management of worker safety at the workplace, in particular in relation to embarking and disembarking aircraft ...by prohibiting workers ... from embarking and disembarking whilst the aircraft's engine was operating and by establishing a designated passenger boarding zone.

1. The defendant indicated its plea of guilty to all the essential elements of the charge at the first hearing. That was before a separate charge against Mr Pye was withdrawn. In my view the defendant is accordingly entitled to the maximum available reduction in penalty under the Sentencing Act 2017 on account of its early plea.
2. The maximum penalty for the charged s 32 offence, also described as a category 2 offence, is a fine of $1,500,000.
3. A number of agreed facts were tendered. They include the following circumstances:

1. The Pye Group is a family owned business that includes Parilla Premium Potatoes Pty Ltd (Parilla) and Zerella Holdings Pty Ltd. Mark Anthony Pye (Mr Pye) is the Managing Director of the Pye Group and a licensed pilot.

1. Parilla is a horticulture and agriculture farm business located at Parilla SA. The Parilla workplace includes numerous sheds and offices with interconnecting dirt roads, as well as the Pye family private residence.

1. Zerella has a number of packing sheds that are located at the Parilla workplace.

1. Mr Shah was 40 years of age at the time and had been employed by Zerella since October 2011. His position in 2023 was a Packing House Leader.

1. The aircraft was stored inside an aircraft hangar that was located approximately 50m north of the main office.

1. A dirt road immediately to the west of the aircraft hangar was used as a taxiway to connect the aircraft hangar to a dirt airstrip approximately 200m to the north.

1. The aircraft was fitted with high-mounted wings and a single three-bladed propeller. The propeller had a diameter of approximately 2m and was predominantly painted black with silver tips.

1. The aircraft contained a pilot seat in the front LHS position, a single passenger seat in the front RHS position and an additional passenger bench seat behind the two front seats. The aircraft had two doors that accessed the two front seats directly.

1. On 8 September 2023, Mr Pye made arrangements to fly the aircraft with two of the Packing House Leaders (Mr Shah and Sayed Sajjadi) to nearby Dolling's farm to check on a new onion processing line on 11 September 2023.

1. Neither Mr Shah nor Mr Sajjadi had previously flown with Mr Pye on the aircraft.

1. At around 12pm on 11 September 2023, Mr Shah arrived at the Parilla workplace in preparation for the scheduled flight.

1. At around 12:09pm, Mr Shah received a call from Mr Pye during which Mr Pye instructed Mr Shah to approach the aircraft from the rear RHS and embark the aircraft from the RHS door.

1. Shortly thereafter, Mr Shah attended at the main office where he used the toilet before he received a work-related call.

1. At around 12:10pm, the aircraft was manually wheeled out from the aircraft hangar and positioned facing north in the middle of the taxiway.

1. Once the aircraft was positioned on the taxiway, Mr Pye and Mr Sajjadi waited near the aircraft for Mr Shah. After around 5-10 minutes they embarked the aircraft.

1. Mr Pye was seated in the pilot seat and Mr Sajjadi was seated in the passenger bench seat.

1. At around 12:20pm, Mr Pye started the aircraft's engine which caused the propeller to start rotating.

1. After a short period of time (estimated to be around 30 seconds to a minute or two), Mr Shah exited the main office and walked towards the taxiway intending to embark the aircraft.

1. Mr Shah approached the aircraft from the rear LHS.

1. At this point, Mr Pye observed Mr Shah from inside the aircraft and, without getting Mr Shah's attention, attempted to direct him to go back and approach from the rear RHS.

1. Mr Shah did not notice Mr Pye and continued to walk along the LHS of the aircraft intending to reach the RHS by walking around the front of the aircraft.

1. As Mr Shah approached the front of the aircraft, he misjudged the diameter of the propeller blades and was struck by the rotating propeller.

1. Mr Pye then immediately powered down the aircraft's engine and provided first aid to Mr Shah whilst Mr Sajjadi called emergency services.

1. Mr Shah was treated at the scene by emergency services before he was transferred to the Flinders Medical Centre where he underwent emergency surgery.

1. Mr Shah suffered traumatic injuries to his right arm from shoulder to hand with multiple fractures to his right forearm and hand. Mr Shah has since undergone multiple surgeries for the injuries to his right shoulder, forearm and hand. After initial discharge he had more surgeries in February and July 2024. He will need more surgery in the future.

1. Parilla has not previously been charged or convicted under the Work Health and Safety Act 2012 (SA).
2. Other significant facts are relevant.
3. The Pye group employs about 400 people.
4. Use of the aircraft at the workplace was not uncommon. The court was not informed how long it had been used by Parilla. Mr Pye has been a pilot since 1994.
5. This occasion was going to be Mr Shah's first flight in Parilla's aircraft.
6. The danger zone around the propellor blades was not marked out or delineated in any way on the ground.
7. Mr Pye did not tell Mr Shah the propellor may be operating, or that he must not walk in front of the aircraft.
8. As Mr Shah approached the aircraft, he noticed Mr Pye sitting in the front left seat and a passenger in the rear seat. Mr Shah then recalled he had been asked to approach the aircraft from the RHS and so, without any communication with Mr Pye, Mr Shah continued walking to the front of the aircraft, intending to embarking through the RHS door.
9. When Mr Pye saw Mr Shah approach from the wrong side of the aircraft and walk to its front, Mr Pye did not turn off the engine or open his door. Mr Pye continued to watch Mr Shah, but they did not make eye contact.
10. While the parties agreed Mr Shah misjudged the diameter of the propellor blades, Mr Shah said in a formal interview on 9 October 2023 that the black blades were not easy to see when turning.[1] Mr Shah did not mention, and was not asked if he saw, the lighter coloured blade ends.
11. Mr Shah read out a Victim Impact Statement. While he did not detail all the injuries and resulting impairments, his right arm and hand have been severely damaged, including by observed partial finger amputations. Mr Shah faces more surgeries and treatments.
12. Mr Shah described significant levels of personal and financial support from Parilla and the Pye family. This included full practical support in his early recovery phase and after he returned to employment, including by providing a driver until he could safely drive himself. He was not financially disadvantaged by the workers compensation scheme, with his employer Zerella making up the shortfall and paying an expected bonus. Mr Shah was given access to more training and was promoted after the offence.
13. Parilla's personal support included paying the visa and travel expenses of Mr Shah's parents and brother to visit him from India for a few months during the recovery phase. Parilla later supported Mr Shah's brother's goal of migration by sponsoring him as an employee.
14. Parilla's General Manger, Renee Pye, provided an affidavit in which she set out the personal support offered to Mr Shah and his family from immediately after the incident.
15. Ms Pye also described in detail the pre-existing safety system of Parilla's enterprises, and the changes made in response to the incident.
16. The new hazard controls primarily include:[2]
    • Explicitly designating areas as 'aircraft operating areas' that must be fenced off.
    • Explicitly designating a 'passenger boarding zone' within the aircraft hangar.
    • Explicitly prohibiting 'hot loading'.
    • Prohibiting persons from boarding any craft without being accompanied by a suitably trained pilot; and
    • Implementing flight safety briefings with passengers prior to them entering the aircraft.
17. Ms Pye stated that Parilla and the Pye family are extremely sorry for what happened to Mr Shah and his family. She stated the business takes full accountability and responsibility for this safety crime.
18. Mr Pye also expressed a personal apology to Mr Shah and his family.

1. The informant submitted the offending was 'objectively serious'. Parilla's breach of its safety duty through unsafe aircraft operations was significant.
2. The inherent risks of death or serious injury from operating an aircraft at the workplace were obvious and could easily have been eliminated or greatly reduced. The catastrophic injuries suffered by Mr Shah are a manifestation of those risks.
3. Parilla had not previously conducted any form of risk assessment of use of the aircraft at the workplace, although it had done so for its other operations.
4. Parilla's post-offence response comprehensively addressed its safety failings regarding aircraft use.
5. The informant submits Parilla fully co-operated with the investigation.
6. Parilla admits the uncontrolled risk to safety from use of the aircraft resulted in an objectively serious offence.
7. Parilla denies it had an established practice of hot-loading passengers, despite Mr Pye allowing that to be attempted on this occasion.
8. Parilla submitted a range of subjective matters are relevant to mitigation. They include no prior record, being of (accepted) good corporate character, being unlikely to reoffend, cooperation with the regulator's investigation, and its genuine high levels of remorse and contrition.

1. Parilla's primary safety duty under s 19 of the Act required it to ensure, so far as was reasonably practicable, that its employees and other workers under its control such as Mr Shah, were safe when they were required to interact with or travel in the aircraft.
2. The objective seriousness of this offence is well into the high range.
3. It was plainly foreseeable, and was foreseen, that a person may be struck by the hazard of the powerful spinning propellor while attempting to join the pilot inside this aircraft, without any guidance on the ground_._
4. Parilla's failure to control this hazard during unassisted passenger loading created a risk of death or serious injury. The enormous power of the hazard and the severity of the harm it could cause was obvious_._ The uncontrolled risk of death or serious injury placed the offence in the higher category 2.
5. Parilla's failures were aggravated by the uncontrolled risk being realised through very serious injuries being inflicted on Mr Shah. The disastrous injuries to Mr Shah were easily preventable.
6. Parilla had failed to consider its legal obligation to implement hazard controls, to the greatest extent that was reasonably practicable, for use of the aircraft in the workplace. Parilla had a range of safety policies and procedures to control the hazards of other traffic and mobile plant in its large enterprise but had not applied them to use of the aircraft. For example, the hangar and taxiway were not even included on the site safety plan.[3]
7. The reasons why Parilla excluded use of the aircraft from its workplace safety systems remains unexplained. Private use of the aircraft by Mr Pye or his daughter, with Mr Pye's home located immediately next to the taxiway and airstrip, may have contributed.
8. The only safety control was Mr Pye's single prior verbal instruction to approach the aircraft from the rear RHS. That single instruction was foreseeably wholly inadequate if there was any possibility the propellor could be operating.
9. There is no explanation for why no other steps were taken by Mr Pye to warn Mr Shah after he was seen approaching from the wrong side and walking towards the front and the operating propellor. This is not an aggravating factor, but an aspect of the objective seriousness of the offence of not ensuring safe embarkation so far as was reasonably practicable.
10. Mr Shah's thought process immediately before being struck are not important as it was readily foreseeable that any passenger left to walk around the front of the unfamiliar and unprotected propellor to reach their door may be struck by the propellor. Mr Shah may not have seen the blurred lighter coloured spinning blade ends, or he may have otherwise misjudged their reach. The context of keeping the boss waiting and having no prior experience with this type of aircraft are other foreseeable potential contributing factors.
11. I accept that Parilla responded to the offence by promptly devising and implementing new hazard controls that will eliminate the risk of injury to passenger and others, if the controls are always applied and followed.
12. The new safety system expressly prohibits hot-loading during embarkation and disembarkation. While I accept Parilla's submission that it did not have a standard procedure, or long-standing informal practice of hot-loading passengers, it was a practice that was casually used by a very experienced pilot on the day. From inside the aircraft Mr Pye observed Mr Shah to walk towards the front of the aircraft and the propellor, without any guidance or warning.
13. The new hazard controls make the pilot responsible for taking passengers between the aircraft and the passenger boarding area, and for providing a safety briefing. During aircraft operations an exclusion zone is implemented to separate the aircraft from people. The same safety rules apply wherever the aircraft lands.
14. The new safety system expressly includes the aircraft within the existing traffic and mobile plant safe work procedures.
15. While the new safety system has been internally reviewed since first revised in late 2023, Parilla recognises there has not been any expert external review. As a result, Parilla has committed to the important step of undertaking an independent safety audit of the current safety system.
16. The audit will include consideration of ways of ensuring Parilla maintains and enforces the safety policies, given they depend on being followed by its two most senior officers who are the pilots.
17. Mr Shah has shown great strength of character in achieving his current level of recovery while still facing more surgeries, treatment and uncertainties. His determination and ability to restore his career without much functional use of his right upper limb is commendable.
18. I find Parilla has offered and provided a high level of meaningful personal and employment support to Mr Shah from the outset. Parilla did not favour self-interest over its victim's losses, as regularly occurs even after a serious safety offence. Parilla has ensured Mr Shah has not been financially disadvantaged by the injury or the workers compensation scheme.
19. This is Parilla's first occupational or work health safety offence. While it is to be treated as a first offender, three prior offences by the Group member and Mr Shah's employer Zerella are relevant to specific deterrence, because the Pye Group has owned Zerella since its most recent offence in 2017.
20. A summary of that offending was published as Campbell v Zerella Holdings Pty Ltd[4].
21. The 2017 offence resulted from Zerella not having any safe operating procedure for clearing blockages in a large sump pump, next to an unguarded operating power take-off. As he had been taught, a worker tried to clear the blockage while the sump continued to operate in order to prevent mud settling. There was no requirement to isolate the powered equipment. Mr Pye was the director and controller of Zerella at the time. The worker suffered very serious injuries.
22. His Honour DP Cole noted Zerella's two prior offences, and described the need for specific deterrence in these terms when imposing a fine of $210,000 after a 30% reduction:[5]

The two previous convictions of the defendant cannot, in my view, be sidelined. In each case the defendant was sentenced on the basis that it had learnt its lesson about safety, and that it was conscious about its safety responsibilities. This incident indicates that the lesson had not been sufficiently learnt.

Whilst I would like to think that the defendant has learnt its lesson and is unlikely to reoffend, the penalty in this case needs to reinforce the importance of the defendant not breaching work health and safety requirements in the future.

1. This sentence was imposed in February 2021, but it did not prompt the Pye Group and Mr Pye to sufficiently review Parilla's safety systems and address the absence of any safety measures for use of the aircraft. The Court's warning was not heeded, with this continuing failure resulting in catastrophic injuries to Mr Shah within two and a half years.
2. I infer Mr Pye was not in control of Zerella when it committed its first two workplace safety offences. Clinton Zerella was the responsible director when I imposed sentence in 2008[6], with the prior ownership unknown. Zerella's bad history of safety compliance was not erased by Mr Pye taking control.
3. I consider there remains a moderate need for specific deterrence for a further reason. The new hazard controls are primarily administrative and hence rely on the pilots to correctly apply them for each flight. The new system contains a weakness of assuming the two pilots will always comply because they are Mr Pye and his daughter. Given Mr Pye's role in this offending, that is an unsafe assumption. A good set of written policies and procedures alone cannot ensure safety compliance, despite the best subjective intentions.
4. General deterrence is another relevant consideration. The incidence of preventable injuries from poorly controlled workplace interactions between people and powerful unguarded or mobile plant remains unacceptably high.
5. The prosecution does not disagree with Parilla's submission that it is entitled to receive the maximum reduction in penalty of 40% on account of its early guilty plea and high level of demonstrated contrition.
6. I have concluded that Parilla should be granted the maximum permitted reduction in penalty for two reasons. First, the early acceptance of responsibility was significant. Parilla accepted full responsibility for the broad impacts of its offending on Mr Shah from the outset. It did so without plea bargaining over the separate charge that was initially laid against Mr Pye. Second, Parilla's full acceptance of responsibility for making reparations for the harm it caused to Mr Shah is to be commended. It did so without regard to Mr Shah's minimum legal rights or self-interest, and it did not wait to be prosecuted before it acted with decency. While the reduction is very large in absolute terms, it is justified by the exemplary steps taken by Parilla to demonstrate its contrition and to make meaningful reparations.
7. Having regard to all the above circumstances and considerations I consider a commencing point of a fine of $600,000 as being most appropriate. After reduction by 40% a fine of $360,000 will be imposed.
8. A conviction will also be recorded.
9. Parilla is also ordered to pay a Victim of Crime levy of $451 to the State and a contribution to the informant's legal costs of $1,210.

[2] Affidavit 12 February 2026, at [26].

[4] [2021] SAET 20

[6] Spinks v Zerella Holdings Pty Ltd [2008] SAIRC 57, at [9].