CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Workplace Injury

Work Health and Safety Act 2011 (ACT) s.3, 32

Crimes (Sentencing) Act 2005 (ACT) s 7

SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

Capitol Chilled Foods (Australia) Pty Ltd (Defendant)

1. The Defendant has pleaded guilty to a single charge pursuant to section 32 of the Work Health and Safety Act 2011 (ACT) ('the Act').
2. As a body corporate the maximum penalty is $1.5 million.
3. I will not recite from the statement of facts at length. The video of the incident, in exhibit 2 as I recall, clearly shows what happened to Mr Thompson, the victim in the matter.
4. In brief, Mr Thompson was in the back dock area at 2 - 8 Mildura Street in Griffith, the premises of the Defendant. He was there as a delivery driver to return crates to the site. His vehicle was parked in that back dock area.
5. Mr Olsen was a forklift operator operating in the same area. It was routine and commonplace for forklifts to be driven into the back dock area whilst delivery drivers were loading and unloading milk crates into and out of the delivery vans. There was no traffic management strategy nor rule preventing forklifts from entering the back dock area when a delivery driver was present or was unloading or loading a delivery van. Additionally, it was routine and commonplace for forklifts to be driven both forwards and in reverse on that site.
6. On the morning of 30 March 2021, Mr Olsen was operating a forklift with a pallet of crates containing full milk bottles. The height of the crates was such that his vision driving forward was obscured. As he attempted to do a turn in the back dock area, he drove the forklift into Mr Thompson which in turn pushed Mr Thompson and pinned him against his delivery truck.
7. Mr Thompson sustained significant injuries.

1. Before dealing with the subjective factors relevant to the Defendant I will deal with the objective factors.
2. As has been noted in the large number of authorities usefully provided to me and indeed in the Act itself, the penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: section 3 of the Act.
3. I have also had regard to the principles of sentencing set out in section 7 of the Crimes (Sentencing) Act 2005 (ACT). It seems to me, when having regard to those principles and that in section 3 of the Act, there is a strong need for the sentence imposed to reflect the principle of general deterrence.
4. Mr Thompson has eloquently set out in his victim impact statement the consequences of this incident upon him including significant long-term impacts upon his physical movement and long-term effects to his mental health.
5. I note from the many authorities provided that the fact that injury has been caused does not necessarily mean that the gravity of the seriousness of the breach should be assessed in that context.
6. Rather the Act is concerned generally with risks to health and safety, and under part three concerned specifically with the duties owed with respect to health and safety. It is the extent that the failure to ensure that employees are not exposed to the risk to their health and safety which determines the objective gravity of any offence.
7. The consequences of the failure generally do not. That is not to say that the death or injury occurring is necessarily irrelevant. The occurrence of any accident resulting in death or injury of a particular kind may inform an assessment of, first the existence of the risk, and secondly the nature and seriousness of the risk.
8. Hence in determining the gravity of the seriousness of the offence, I must assess first the extent of the departure from the duty owed, and secondly the extent of the risk to health and safety thereby created, and thirdly the likelihood of the risk of particular harm resulting.
9. Put another way, in a case such as the present, the gravity of the seriousness of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that workers were not exposed to risks to their safety. An offence will be serious where there is an obvious and foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible.
10. How and why the failure occurred is however relevant to sentencing. In assessing the company's culpability, it will be relevant to know for example whether the breach was the result of failure to adhere to systems put in place by management or, in the alternative was a result of failure by management to establish adequate safety systems and procedures in the first place.
11. In the decision of SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191 at [68] Strathdee DCJ usefully sets out a summary of the factors to be considered in respect to the objective seriousness of the offence, which I will now recite from.
12. The matters relevant to the objective seriousness for a section 32 offence include:
    1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where potential injuries are severe regardless of whether they are likely to materialise.
    2. The availability of steps to minimise or eliminate the risk.
    3. Whether those steps are complex, burdensome, or mildly inconvenient, if mitigating steps could have easily been taken, the offending will be more serious.
    4. Whether the risk was known or ought reasonably to have been known or identified by the offender.
    5. Whether the risk was an obvious or clear one and.
    6. The vulnerability of workers exposed to the risk.
13. In my view I make the following findings as to the seriousness of the risk.
14. The risk of the worker being seriously injured or killed as a result of being struck by a vehicle whilst undertaking work in the back dock area of the site, was known to the Defendant and was foreseeable.
15. Indeed, on the day of the accident the driver had been directed not to drive with his pallet overloaded on the forklift such that he could not see.
16. It appears that the Defendant had a traffic management protocol in place, but it was some 12 years old at the time of the offence and did not specifically deal with the back dock area, in particular specifying any form of separation mechanism between people and vehicles in that area such as an exclusion zone, physical barriers or a prohibition on forklifts. Further, in the agreed statement of facts the defendant agreed that it failed to provide adequate information and training to its workers and failed to provide adequate supervision to its workers.
17. The gravity of the risk was significant as there was the potential for a very serious injury or fatality, particularly in regard to the size and weight of the vehicles, such as the forklift, moving in the area.
18. The Defendant did appear to be aware of the available ways to manage the hazard. Its own policies at the time acknowledged there was a need to 'always segregate people and forklifts'.
19. As noted, the Defendant had a traffic management plan, but it did not specifically designate rules to the back dock area or moderate the movement of vehicles and pedestrians in the area at the same time.
20. The likelihood of the risk manifesting was high as the site had a high volume of traffic movements.
21. Taking appropriate measures would not have entailed significant burden or cost. The steps taken post the incident were not complex, burdensome, or mildly inconvenient.
22. Having had regard to those principles it seems to me, firstly the extent of the departure from the duty owed was significant. Secondly the extent of the risk to health and safety thereby created was in my view also significant, as indeed demonstrated by the injury sustained to Mr Thompson.
23. Third as a result of that departure from the duty owed, the likelihood of risk of particular harm resulting was high. The risk was as a result of the failure by the Defendant to establish adequate safety procedures. Implementing those procedures was not complex, burdensome, or inconvenient. It is therefore my view that the objective gravity of the seriousness of the breach is to be considered as high overall.
24. In my view this determines that I should consider the starting point for the financial penalty to impose as $400,000.

1. I then turn to the subjective factors of the Defendant. The Defendant comes before the court with no prior convictions. The Defendant is to be regarded of good character. Mr Russell, who appeared for the Defendant submitted that in the period prior to the accident the Defendant had just a few months before the incident been purchased by Bega Foods Pty Ltd. An employee of Bega was in the process of inspecting various work sites, but the incident had occurred before the scheduled site visit to Capitol Chilled Foods.
2. Some evidence of the good character of Bega Foods was adduced in the submissions of Mr Russell. In my view this evidence is not relevant to the sentencing process as I am sentencing the Defendant as an independent corporate entity.
3. Nonetheless, as I have mentioned, the Defendant comes before the court with no prior matters on its criminal history. The Defendant indicated a plea of guilty at the earliest opportunity. The Defendant has some 70 employees and contributes to the local foodbank program.
4. What is also significant is the steps the Defendant has taken following the accident both in the short-term and long-term. In the short term the site was shut down and briefings were conducted with all employees. Counselling services were also offered. In the long-term the Defendant has implemented a number of measures to ensure that the risk is minimised in the future, as recited in paragraphs 14-28 of the Defendant's submissions.
5. It seems to me in those circumstances the Defendant has entered a plea of guilty at an early time, which is an indication of both contrition and remorse and a full acceptance of responsibility. The Defendant's lack of prior convictions and the steps it has taken to ensure that the risk has been minimised or eliminated in the future should also count in its favour. I'm prepared to afford the maximum discount of 25%, notwithstanding the strength of the prosecution case against the Defendant.
6. Accordingly, I impose a conviction upon the Defendant and a fine of $300,000.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Decision of His Honour Magistrate Lawton.