SafeWork NSW v B & J Benchtops Pty Ltd

[2019] NSWDC 674

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v B & J Benchtops Pty Ltd [2019] NSWDC 674
Hearing dates:	4 November 2019
Date of orders:	18 November 2019
Decision date:	18 November 2019
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1   Michael Douglas Herbert is convicted. 2   I impose a fine of $15,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4   B & J Benchtops Pty Ltd is convicted. 5   I impose a fine of $90,000. 6 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 7   The offenders are to pay the prosecutor’s costs as agreed in the sum of $31,250.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured   SENTENCING – objective seriousness – deterrence – aggravation factors – mitigating factors
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) B & J Benchtops Pty Ltd (Defendant) Michael Herbert (Defendant)
Representation:	Counsel: N Read (Prosecutor) L Doust (Defendants)   Solicitors: Legal, Government and Corporate Services, Department of Customer Service (Prosecutor) DLA Piper Australia (Defendants)
File Number(s):	2018/277348 and 2018/277338
Publication restriction:	None

Judgment

Introduction

1. B & J Benchtops Pty Limited (the company) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Act, it failed to comply with that duty and thereby exposed Shen Tao Xiao to a risk of death or serious injury contrary to section 32 of the Act.

2. The maximum penalty is a fine of $1,500,000.

3. Michael Douglas Herbert (the defendant), has pleaded guilty to an offence that as a person who had a health and safety duty under section 27(1) of the Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Mr Xiao to a risk of death or serious injury contrary to section 32 of the Act.

4. The maximum penalty is a fine of $300,000.

Facts

5. The parties presented an Agreed Statement of Facts which can be summarised as follows.

6. The company manufactured and installed bench tops and cabinetry and operated its business at 2 Arnott Place, Wetherill Park in the State of New South Wales.

7. As part of the manufacturing process, various timber and plastic materials were cut to size and off-cuts were collected in a scrap bin. The scrap bin measured 800 mm x 1200 mm and was 600 mm high. The scrap bin was fitted with four castor wheels on its underside and one side of it could be removed by sliding it upwards.

8. The following method of work was used when the scrap bin was required to be emptied into a skip bin:

1. a 1996 Toyota forklift (the forklift) would be used to pick up the scrap bin from the longer side together with a worker. The side of the scrap bin was positioned close to or against the load guard of the forklift and the scrap bin was then elevated, with the worker, to a height of approximately 1.8 metres, being just above the lip of the skip bin;

2. the tynes of the forklift were adjusted to sit firmly against the inside of the wheel mounts on the underside of the scrap bin to secure the scrap bin in place on the tynes;

3. the wheel mounts on the underside of the scrap bin were fixed against the skip bin to keep the scrap bin in place;

4. the sliding side of the scrap bin would be removed; and

5. the worker would manually move the off-cuts from the scrap bin into the skip bin using his hands or feet.

9. The scrap bin was not a specifically designed workbox, safe to use on the tynes of a forklift.

10. This method of work had been undertaken at the site over a period of at least seven years before the incident.

The Incident on 15 March 2018

11. On 15 March 2018, Mr Xiao and Adam Ark, both workers of the company, were given the task of emptying off-cuts from the scrap bin into the skip bin. Neither of them had a forklift licence.

12. Mr Ark was operating the forklift and raised Mr Xiao in the scrap bin on the tynes of the forklift to a height of approximately 2 metres. Mr Xiao removed the removable side of the scrap bin and began manually transferring the off-cuts from the scrap bin into the skip bin. Whilst doing this he was standing on the tynes of the forklift, rather than in the scrap bin.

13. Once the scrap bin was approximately half empty, Mr Xiao climbed into the scrap bin. He began using his feet to kick back the off-cuts from the scrap bin into the skip bin. As Mr Xiao continued with this task, Mr Ark used the forklift to move the scrap bin away from the support of the edge of the skip bin and Mr Xiao moved to the left side of the scrap bin. As the left side of the scrap bin was not adequately supported by the forklift’s tynes, or the edge of the skip bin, it became unbalanced and fell from the tynes, causing Mr Xiao to fall to the concrete floor below.

14. Mr Xiao landed on his head and shoulders and was knocked unconscious. He was treated on site by paramedics and was transported to hospital via ambulance.

15. As a result of his injuries, Mr Xiao suffered a fracture to his upper arm, left hip and his fifth and sixth ribs, significant bleeding from his head, bruising and swelling to his forehead and the area around his left eye.

System of Work Following the Incident

16. After the incident the defendant arranged for a sign to be placed on the forklift advising that the forklift was not to be driven without the driver holding a licence.

17. The forklift key was locked away.

18. About a week after the incident, the defendant’s son, Daniel Herbert, who had been working for the company for approximately 20 years, obtained a further forklift licence.

19. The process for emptying the scrap bin was changed in that it was emptied by hand while the scrap bin remained on the ground.

20. Following a suggestion from a SafeWork Inspector, when the scrap bin was manually emptied into the skip bin, the scrap bin would be raised slightly so as not to put too much pressure on the worker’s back. The bin was raised by Daniel Herbert using the forklift.

The Offender’s Case on Sentence

21. The offenders relied on the affidavit of the defendant sworn 30 October 2019. The defendant was present in Court but not required for cross-examination. His evidence can be summarised as follows.

22. The company was incorporated on 28 June 1993.

23. In about 1994 the defendant was approached by Glenn Elliott to enter into a partnership arrangement to run the business that was operated by the company.

24. The defendant was a bank manager, with no experience in the business operated by the company. Mr Elliott was a trained cabinet maker and had previously owned a joinery business. The arrangement between the defendant and Mr Elliott was that the defendant would look after the business side of the operation and that Mr Elliott would be responsible for the production side of the business. The defendant was appointed a director of the company on 3 September 1996 after resigning his employment as a bank manager.

25. The defendant took on the role of general manager for the company, responsible for the business operations and working predominantly in the office. Mr Elliott worked as the production manager.

26. In late 2013 Mr Elliott became critically ill after suffering a stroke and going into a coma for a period of time. Mr Elliott was too unwell to return to work and decided to leave the business. In December 2014, the business was transferred to the defendant.

27. At about that time the defendant started to suffer from his own health difficulties as a result of the progression of his diabetes. The defendant suffered from nerve damage in his hands and legs which compromised his mobility and sight problems. He also suffered from high blood pressure and was referred to a cardiologist for monitoring. From about the time that Mr Elliott left the business, the company struggled to make a profit.

28. In about January 2015 the defendant was referred for an angiogram following symptoms of chest tightness and pressure. After the angiogram he was referred for emergency surgery (quadruple bypass) to treat coronary artery disease. The defendant could only take two weeks off work due to the demands of the business. He returned to work part time for about six weeks until he could resume full time hours.

29. His health issues increased and it became difficult for him to manage the business. He suffered from a blocked artery in his leg, cataracts and vertigo. His general practitioner began to encourage him to retire. He was required to take multiple medications each day and to administer two injections of insulin per day.

30. In 2016 the defendant was required to dedicate a lot of his time to family responsibilities. In particular, his brother had severe health issues and the defendant and his wife became his carers as well as supporting him financially.

31. In or about the end of 2017 the defendant decided to wind up the operations of the company.

32. In January 2018 the defendant told the company’s employees of his decision and advised them to look for other work. As staff members left, they were not replaced and by 15 March 2018, only six employees remained in the business, including the defendant.

33. In February 2018 the defendant refused an offer of substantial new work for the company. The company continued to carry out only defect and repair work on jobs pursuant to existing contractual obligations.

34. The defendant eventually found a purchaser for the factory and the equipment of the business. The equipment and factory site were sold on 1 August 2018.

35. The company no longer operates the factory or any other business. The defendant has no intention of using the company as a vehicle for the conduct of any other business in the future. The defendant is retired and does not intend to return to the work force.

36. The defendant deposed that he had previously relied on the trade skills of Mr Elliott and other senior employees in respect of workplace safety. A number of precautions were taken in respect of safety of the various machinery used at the factory. The defendant deposed that he took an active role in safety matters so far as he was capable of doing so. The company had in place a Safework Method Statement and Management Plans for commercial projects that had been requested by some contracting parties. The defendant frankly acknowledged that the company had failed to apply the same approach in the day-to-day operations of the workshop floor including as to the use of the forklift and the method of work described in unloading the scrap bin.

37. The defendant accepted the description of the accident set out in the Agreed Statement of Facts and that he had seen the method employed for years prior to the incident occurring.

38. The defendant acknowledged that the system employed to empty the scrap bin was inadequate and failed to ensure the health and safety of the workers, particularly Mr Xiao, and that there were reasonably practical measures that could have been taken to alleviate the risk.

39. The defendant acknowledged that the company should have done better and that as a result, Mr Xiao incurred pain and suffering and ongoing difficulties.

40. The defendant provided SafeWork NSW with everything requested as well as CCTV footage of the incident.

41. The defendant described an ongoing relationship with Mr Xiao since 1993. Mr Xiao had first been employed by Mr Elliott after turning up at the factory looking for work. Mr Xiao did not have any previous experience. Mr Elliott employed him and trained him on to various pieces of machinery. Mr Xiao came to Australia as a refugee from China after photographing the Tiananmen Square protest. Mr Xiao was later placed into immigration detention. The defendant and his wife supported Mr Xiao, including paying his legal fees for him to obtain permanency and later, citizenship.

42. After the incident, the defendant visited Mr Xiao in hospital and then at the rehabilitation hospital. The defendant and his wife took Mr Xiao food and drove him to a number of specialist appointments. The defendant recommended Mr Xiao to the owner of the new business to continue in his employment when he recovered. Mr Xiao commenced working for the new owner of the business on a return-to-work programme.

43. From about 2004 to 2013 the company supplied joinery items for offices of Learning Links, a charitable organisation supporting children with learning disabilities. Between 2004 to 2015 the company supplied joinery free of charge to Share Care Disability Services Limited, a company that provided services to people with disabilities.

44. The company also participated in a prisoner return-to-work programme in 2004. A prisoner on day release was employed full time at the company as part of his re-integration into the community.

45. The company also provided sponsorships to a number of sporting organisations.

46. The company was a member of the Master Builders Association for more than 16 years.

Consideration

47. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

48. The offences are each of some objective gravity.

The offence committed by the company

49. The risk posed by emptying the scrap bin in the method adopted presented an obvious risk. It included a risk of death.

50. The measures that could have been taken to eliminate the risk were simple, particularly by emptying the scrap bin whilst it was on the ground. The adopted method, allowed for the unlicensed operation of the forklift and provided for it to be used unsafely.

51. The injuries sustained by Mr Xiao were serious.

52. I have had regard to the maximum penalty for the offence.

The offence committed by the defendant

53. The defendant did not always have the responsibility for exercising due diligence in the way contemplated by section 27 of the Act. The defendant acquired that responsibility as a result of the ill health of Mr Elliott at a time when his own health was failing. Nevertheless, the defendant did become responsible for exercising due diligence to ensure that the company complied with its obligations in about 2014.

54. By his plea and in his evidence, the defendant frankly admitted that he failed to exercise due diligence as to some of the work methods adopted in the factory. The system required to be implemented in this case was a simple one.

55. The injuries sustained by Mr Xiao were serious.

56. I have had regard to the maximum penalty for the offence.

Deterrence

57. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

58. There is no need for specific deterrence in this case. The company is no longer trading and the defendant is retired as a result of his health. I accept the defendant’s evidence that he does not intend to work and that the company will not be used for any other purpose.

Aggravating Factors

59. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. Neither offence requires the occurrence of an injury, only that a worker is exposed to a risk of serious injury or death. Accordingly, the infliction of injury, in this case, serious injuries, is sufficient to establish the aggravating factor.

Mitigating Factors

60. Neither the defendant nor the company has any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The company was incorporated in 1993. The defendant is 60 years of age.

61. Each offender demonstrated good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The company had in place some systems to provide for the health and safety of its workers at the factory and off-site. The defendant did exercise some supervision over practices in the factory that he considered to be unsafe. The defendant frankly conceded the company’s and his own failings led to Mr Xiao’s injury. Until the business changed hands on 1 August 2018, the company undertook steps to improve its safety systems including prohibiting the unauthorised use of the forklift, qualifying one of the workers to operate it and changing the system of operating the scrap bin.

62. The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The defendant, in his affidavit, accepted responsibility for his actions and expressed remorse and on his own behalf and on behalf of the company. The defendant also demonstrated remorse through the support that he provided for Mr Xiao after his injury. I am satisfied on the balance of probabilities, that the offenders have accepted responsibility for their actions and have demonstrated genuine remorse and contrition.

63. The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. They are entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

64. The offenders co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. I was very impressed by Mr Herbert’s candour in his evidence and the extent of his acceptance of responsibility for the incident. I am satisfied that these matters demonstrated his willingness to facilitate the course of justice.

65. The company, through its commitment to the community and to charities, has demonstrated itself to be a good corporate citizen.

Penalty – Mr Herbert

66. Michael Douglas Herbert is convicted.

67. The appropriate fine is one of $20,000 which will be reduced by 25% to give effect to the plea of guilty.

68. I impose a fine of $15,000.

69. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Penalty – B & J Benchtops Pty Ltd

70. B & J Benchtops Pty Ltd is convicted.

71. The appropriate fine is one of $120,000 which will be reduced by 25% to give effect to the plea of guilty.

72. I impose a fine of $90,000.

73. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

74. The offenders are to pay the prosecutor’s costs as agreed in the sum of $31,250.

**********

Decision last updated: 19 November 2019