SafeWork NSW v Banana's Truck and Tipper Hire Pty Ltd; SafeWork NSW v David Monk

[2020] NSWDC 579

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Banana’s Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk [2020] NSWDC 579

Hearing dates:

30 September 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

Penalty for Banana’s Truck & Tipper Hire Pty Ltd (2019/27571):

(1)   The defendant Banana’s Truck & Tipper Hire Pty Ltd was convicted on 30 September 2020.

(2)   The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order the defendant Banana’s Truck & Tipper Hire Pty Ltd to pay a fine of $225,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order the defendant Banana’s Truck & Tipper Hire Pty Ltd to pay the prosecutor’s costs.

Penalty for David Monk (2019/27593):

(1)   The defendant David Monk was convicted on 30 September 2020.

(2)   The appropriate fine is $60,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order the defendant David Monk to pay a fine of $45,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5) Order pursuant to Section 241 of the Work Health and Safety Act 2011 (NSW) that the defendant David Monk:

(a)   Undertake a course in due diligence training for senior managers and company directors conducted by a provider that is a Registered Training Organisation, within six months of the date of these orders;

(b)   Provide evidence to the prosecutor of the satisfactory completion of such course.

(6)   Order the defendant David Monk to pay the prosecutor’s costs agreed in the amount of $25,000.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

COSTS – prosecution costs

OTHER – business provided arborist services – worker suffered significant fall in attempting to climb out of a log truck bin – minimal training on loading the truck – lack of instruction regarding climbing to access and exit the truck's bin – no safe method of access to or egress from the bin of the truck – safe work method statement not reviewed prior to the incident

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32, 241, 274

Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 78

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

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

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; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Safe Work Australia, Draft Code of Practice: Managing Risks in Tree Trimming and Arboricultural Work (undated)

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (July 2016)

SafeWork NSW, Code of Practice, Managing the Risk of Falls at Workplaces (April 2016)

SafeWork NSW Safety Alert “Safety video targets potentially fatal falls from flatbed trucks” (March 2015),

SafeWork NSW Code of Practice: Managing the risks of plant in the workplace (July 2014)

WorkCover NSW, Code Of Practice: Amenity Tree Industry (August 1998)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Banana's Truck & Tipper Pty Ltd (Defendant)
David Monk (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
D Woodbury (Defendants)

Solicitors:
SafeWork NSW (Prosecutor)
McGirr Lawyers (Defendants)

File Number(s):

2019/27571
2019/27593

Judgment

Introduction

1. This case concerns an incident arising during a tree removal job on 16 February 2017. While climbing out of a log truck bin, a worker fell from a significant height, resulting in permanent paraplegia.

2. Banana’s Truck & Tipper Hire Pty Ltd (BTTH) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Edward Morgan to a risk of death or serious injury contrary to s 32(1) of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

4. Mr David Monk has pleaded guilty to an offence that being an officer of BTTH, a corporation which was a person that had a work health and safety duty pursuant to s 19(1) of the Act, he failed to comply with his duty under s 27(1) of the Act to exercise due diligence to ensure that BTTH complied with its duty pursuant to section 19(1) of the Act, and the failure to comply with his duty exposed Mr Morgan to a risk of death or serious injury contrary to s 32(1) of the Act.

5. In the case of a director of a corporation, the maximum penalty is a fine of $300,000.

Background

6. The parties presented an Agreed Statement of Facts. This material is summarised below.

7. BTTH was a registered corporation which operated from premises at 84-86 Poole Road, Kellyville, New South Wales.

8. BTTH conducted a business or undertaking which provided arborist services, including tree removal, pruning, and stump grinding under the trading name “Fast Call Trees”. As a call-out business, it operated in various locations.

9. Mr Monk was the sole director of BTTH. Mr Monk personally worked alongside workers and made decisions that affected the whole or a substantial part of BTTH’s business. Mr Monk was responsible for implementing safety measures for controlling hazards in the work undertaken.

10. Mr Edward Morgan was employed as a Groundsman by BTTH from 2 July 2016. Mr Morgan’s duties included maintaining and using chainsaws, roping, dragging branches and wood chipping.

11. Mr Matthew Bennell was employed as a Groundsman by BTTH. At the time of the incident Mr Bennell had been employed by BTTH for approximately 18 months. Mr Bennell is Mr Morgan’s brother-in-law.

The log truck

12. BTTH owned an Isuzu dual cab truck. On the body of the truck was a large blue bin measuring 4,500mm long, 2,320mm wide and 1,835mm high. The distance from the ground to the top of the truck bin was 3,080mm. The bin had an open top, three walls, and a tailgate at the back hinged on the left side.

13. An orange HIAB loader crane was situated between the truck’s cabin and the front wall of the bin. The outside of the front wall of the bin had at least one horizontal reinforced metal beam.

16 February 2017

14. BTTH was engaged to remove a phoenix palm tree from the front yard of a property located in Asquith in NSW.

15. Mr Monk was the designated supervisor at the site. Mr Morgan, Mr Bennell, Mr Grant Bennett (Groundsman/Truck Driver) and Mr Alan Knapman (sub-contracted Tree-climber) attended to conduct the work.

16. BTTH engaged Transformer Cranes to assist with the task of lifting the palm tree into the bin of the truck. Transformer Cranes provided a mobile crane and two workers, Mr David Isaacs (Crane Operator) and Mr Chay Blyth (Dogman).

17. Mr Monk explained the task to be completed and the work commenced. According to Mr Bennell, the method of work for lifting the tree into the truck was not discussed.

18. The work was to be completed by removing the fronds from the palm tree, cutting the barrel of the tree, lowering the barrel to the ground with the mobile crane, and loading the barrel into the bin using the mobile crane.

19. Mr Knapman climbed the tree and removed the fronds. He then cut the barrel of the tree. Once the barrel was cut, the crane lifted the barrel vertically and laid it on the ground. Mr Monk then left the workplace.

20. The barrel of the tree was double chained for a horizontal lift. The crane, operated by Mr Issacs, lifted the barrel into the bin. The barrel had not been measured to ensure that it would fit within the bin.

21. At the time of loading the barrel into the bin, the back gate of the truck was closed. A trailer float containing a stump grinder was attached to the back of the truck. It was possible to partially open the back gate of the truck at least 1.2 metres out to the leg stand on the float.

22. To assist the loading of the barrel onto the truck, Mr Bennell climbed up the back of the truck via the crane (situated between the cabin and the back wall of the bin). Mr Bennell was standing on either the crane or on a metal reinforced beam on the outside of the bin of the truck and was performing the role of a “spotter.” Mr Bennell was not a ticketed dogman and he had not been assessed by BTTH as being competent to undertake the task of directing and/or spotting the landing of loads.

23. The barrel of the tree was too large for the bin. The mobile crane could not lift and re-position the barrel because the cut fronds became wedged in the hinges of the back gate.

24. Mr Bennell climbed up and over the wall of the bin and into it. Mr Bennell was passed a chainsaw in order to cut the barrel to a shorter length so that it would fit within the bin. Mr Morgan also climbed into the bin with a chainsaw to assist Mr Bennell in completing the cut.

25. The workers cut off approximately 500mm from the end of the barrel by using the chainsaws.

26. Mr Bennell and Mr Morgan began to climb out of the bin. While Mr Morgan was climbing out, he fell from the top of the left-hand side of the front wall of the bin, a height of 3,080mm, onto the road below and landed on the back of his head.

Injuries

27. Mr Morgan received first aid until the ambulance arrived, and he was then airlifted to Royal North Shore Hospital. He was treated for a basal skull fracture, broken 7th and 8th ribs, a collapsed lung and a T12 spinal cord transection. Mr Morgan’s spinal cord transection resulted in permanent paraplegia from the waist down.

28. Mr Morgan has undergone occupational therapy, physiotherapy, and counselling. His home has been modified, requiring the installation of ramps and appropriate toilet and bathroom facilities. Mr Morgan suffers from a neurogenic bladder and bowel, requiring intermittent catheterisation and a regular bowel care routine. Mr Morgan requires carer support to assist with daily needs including bathing and toileting.

Systems of work prior to the incident

29. At the time of the incident there was no safe method of access to or egress from the tray of the truck, such as a permanently fixed metal ladder to enable access when the back gate of the truck was open.

30. The only method of access to the bin of the truck involved climbing, either via the back gate when the gate was open or over the bin walls via the crane.

31. BTTH did not develop, implement and enforce a safe method of work for loading the truck. Prior to the incident BTTH’s practice was for tree trunks (or barrels) to be stepped out and cut to size prior to loading into the truck bin.

32. Before the incident, a toolbox talk was undertaken. Mr Monk had told Mr Blyth to place the palm tree on the ground, with the straight section cut off and the round head section to be loaded after the straight section. The back gate was to be opened to load.

33. Mr Morgan had observed Mr Monk jumping into the tray via the back gate to undo the chains on previous occasions. Mr Bennett said the method of accessing the tray changed from job to job. Mr Bennett said he had observed workers, including Mr Monk, accessing the tray by climbing when the back gate was closed.

34. Mr Bennell had not been told by BTTH or Mr Monk that he was not permitted to stand on the crane (or the reinforced metal beams on the outside of the bin) while the truck was being loaded. Mr Bennell had stood in that position on many previous occasions.

35. The logs were loaded into the truck with either the tailgate open or closed prior to the incident, depending on how the truck was positioned.

36. Prior to the incident Mr Monk had given no specific direction about accessing the bin by climbing over the top.

37. At the time of the incident, BTTH had a written document dated 3 July 2013 titled “SafeWork Methods Statement and On-Site JSEA” (SWMS). The SWMS was a generic document covering a large number of arboricultural safety hazards.

38. The SWMS identified the hazard of “lack of planning the work prior to commencement” and identified a control measure as “crew leaders are to ensure that all workers are involved in discussing the work plan and understand their specific roles and responsibilities”.

39. In respect of the work activity of “vehicle, truck and driven plant use”, the SWMS identified the hazards of “persons may be injured due to lack of operator training” and “crushing or striking from contact with mobile plant or loads”. The control measures for the work activity included the following: “Operators are to ensure that when plant is being loaded, unloaded or in operation that no person comes into contact with plant or load and should stand away at all times and not ride any exterior surface or load area”.

40. The SWMS was kept in the truck and it was not reviewed prior to each job. Mr Bennell was aware of the SWMS but said no-one from BTTH had gone through the document with him prior to the incident.

41. Mr Bennell had not been provided with specific training on the task of loading the truck in accordance with the SWMS. The barrel would ordinarily be “walked out” to measure it prior to it being lifted into the truck.

42. Mr Bennett had received minimal training on truck loading. He had been trained not to stand in the bin when the log was being loaded, but had not received an instruction prohibiting climbing in or out of the bin.

Guidance Material

Code of Practice: Amenity Tree Industry

43. The Code of Practice for the Amenity Tree Industry (August 1998) (Tree Code) applies to the removal of trees and the equipment used in such operations. The Tree Code was referenced in BTTH’s SWMS. The Tree Code applies for all people who work within the Amenity Tree Industry and provides a practical guide to achieving minimum health and safety standards.

44. The Tree Code provides that anyone slinging or directing a load should hold a Dogging Certificate. It also provides information in respect of setting up safe working zones. It says: “Any person who slings or directs a load must have the appropriate Certificate of Competency...There should be constant means for clear visual and/or verbal communication between the crane operator, the climber or the ground workers”.

Work Health and Safety Regulation 2011

45. Clause 34 of the Work Health and Safety Regulation 2011 (the Regulation) states that a duty holder must identify reasonably foreseeable hazards that could give rise to risks to health and safety.

46. Clause 35 of the Regulation states that a duty holder, in managing risks to health and safety, must eliminate risks to health and safety so far as is reasonably practicable; and, if it is not reasonably practicable to eliminate risks to health and safety – minimise those risks so far as is reasonably practicable.

47. Clause 78 of the Regulation specifically states that a person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a fall by a person that is likely to cause injury to that person.

48. Clause 78(4) of the Regulation provides that a person conducting a business or undertaking must provide a safe means of access to and exit from the workplace, and any place from which a person could fall.

SafeWork NSW Safety Alert – Falls from Truck Trays/Trailers

49. The 2015 Safety Alert highlighted the potentially fatal hazard of workers falling from truck trays and trailers and provided safety steps to prevent such falls. This was available on the SafeWork website at the time of, and prior to, the incident. The video outlined simple safety steps to prevent falls, including the necessity to remain on the ground during loading and unloading operations.

Code of Practice: Managing the Risk of Falls at Workplaces

50. The SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces (April 2016) (the Falls Code) is an approved Code of Practice under s 274 of the Act and provides practical guidance on how to manage health and safety risks arising from falls and on control measures.

51. The Falls Code says that the administrative control of “No go” areas can be an effective method of making sure people are not exposed to hazards. “No go” areas require clear signs warning people not to access the hazardous area.

52. The Falls Code also provides the following:

1. The work should be organised so that people do not interfere with other workers or increase the risk to themselves or others;

2. Administrative controls may be as simple as a safe work procedure that describes the steps involved in safely undertaking a task. It may also include any particular training, instruction and the level of supervision required. For example, a safe work procedure to reduce the risk of falls when entering or exiting vehicles may include instructing drivers to not jump down from the cab and always maintain three points of contact when climbing into or out of the cab. If relying on administrative controls, it may be necessary to provide a high level of supervision to ensure that the safe work procedure is being adhered to.

Guide to Managing Risks of Tree Trimming and Removal Work

53. The 2016 Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work provides practical information to the Amenity Tree Industry on managing health and safety risks, including risks of falls.

Managing the risks of plant in the workplace – Code of Practice

54. The 2014 SafeWork NSW Code of Practice on managing the risks of plant in the workplace is an approved Code of Practice under s 274 of the Act. The Code says that severe injuries can result from the unsafe use of plant, including sustaining fractures from falls while accessing plant. The Code says that when identifying hazards, a duty holder should think about all the activities that may be carried out during the life of the plant and consider whether workers are able to access the plant without risk of slips, trips or falls.

Draft Code of Practice: Managing Risks in Tree Trimming and Arboricultural Work

55. At the time of the incident a Draft Code of Practice regarding managing risks in tree trimming and arboricultural work was available on SafeWork Australia’s website. Chapter 5 of the Draft Code provides the following:

1. Use of a mobile crane for cutting sections of trees from the ground and removing them from a site is a “high-risk activity”;

2. Mobile cranes must not be used for tree lopping unless:

1. the crane operator remains at the controls at all times and does not perform the role of a dogger;

2. a dogger is present during all lifting activities;

3. a written SWMS is prepared and reviewed prior to each lift;

4. the arborist, crane operator and dogger consult prior to the work commencing so that the work is undertaken in a coordinated way and in accordance with a SWMS;

3. The tree arborist and crane operator are to participate in, and be satisfied with, the documented procedure;

4. All workers should receive information, instruction, training relevant to the work to be undertaken. If a worker does not have experience in this type of work method, they should be directly supervised by a worker who has experience relevant to the work;

5. Workers involved in securing loads to the crane must have a dogman licence and should have undertaken a relevant competency-based course such as a Certificate III in Horticulture (Arboriculture).

Systems of work following the incident

56. Following the incident, BTTH implemented the following measures:

1. BTTH consulted with its workers and developed a specific SWMS for the task of loading logs into the Isuzu log truck. The SWMS was drafted in conjunction with Metro Cranes. The SWMS identified the risk of falling from heights if the truck walls were climbed on and set out the following controls:

1. “Climbing on bin is strictly prohibited”.

2. “Trunk/barrel from tree/s is to be measured to a length of 3 metres in length and all stubs cut off where practically possible. As bin 4 metres long logs will load with no jamming”.

3. “Log to be set down and positioned in bin by dogman or trained operator”.

4. “Once log lowered and is in position in log truck chains to be lowered ready for release. Dogman or authorised trained operator to access bin via ladder attached to rear of truck”.

2. BTTH provided training to its workers on the method of work for loading the log truck. It also developed training materials, including a video.

3. BTTH placed warning signs on the inside and outside of the truck instructing workers not to climb on the truck bin.

4. A ladder was fabricated and attached to the rear of the truck bin enabling access when the back gate is open.

5. Workers were re-trained in using chainsaws by HBA Learning Centre.

6. Training was administered for the wood chipper and stump grinder, with certificates issued.

Evidence for the defendants

Affidavit of Mr David Monk

57. Mr David Monk swore an affidavit on 31 August 2020.

58. Mr Monk stated that he is extremely remorseful for what has occurred. He said that the incident has placed an enormous amount of stress on his family, especially given the media attention and the fact that his partner Ms Santiago was experiencing serious health issues. At the time of the incident, Mr Monk was balancing care of his infant daughter, care for his unwell partner and duties to his company and his staff.

59. Mr Monk has recently completed a course with Pinnacle Safety and Training on implementing appropriate WHS policies and procedures. Mr Monk said he now has a full awareness of the proper procedures that need to be in place to ensure a safety incident does not occur again and to avoid serious death and injuries among his whole team and contractors.

60. The information Mr Monk submitted as to financial circumstances and capacity to pay a fine are dealt with later in this judgment.

61. Mr Monk said that the reason BTTH is no longer trading is due to the negative publicity associated with these proceedings. He has set up a new company. I comment below on that assertion.

Psychological Assessment Report

62. Ms Linda Chamberlain, a Clinical Psychologist, assessed Mr Monk and provided a report to the court dated 25 August 2020. She has known Mr Monk since October 2005 when he initially attended her practice to address difficulties with sleep, low mood and anxiety. Following management of these issues, sessions ceased in 2011. Ms Chamberlain had not seen Mr Monk for several years prior to the incident in 2017.

63. According to Ms Chamberlain, Mr Monk had a positive childhood and a history of stable and secure employment following completion of his HSC in 1989. He previously served as a police officer for three years after finishing high school following witnessing and being involved in several stressful and traumatic incidents. He was awarded a Commendation on his Service Record during his time on the NSW Police Force. During the period between 1995 and 2000, Mr Monk was unable to work due to requiring ongoing treatment for serious leg injuries he received in a motor vehicle accident on 25 March 1995. From February 2000 to end of June 2004, Mr Monk ran a partnership called Fastcall Trees. In the final two years of this partnership, Mr Monk experienced stress, anxiety and his first significant episode of depression.

64. Ms Chamberlain said that Mr Monk presently is a dedicated family man and father of two. At the time of the incident when he was dealing with the serious health issues of his partner and was concerned about the welfare of his small child.

65. In the conclusion of her report, Ms Chamberlain described Mr Monk as a sensitive and considerate man who feels genuine remorse about the injury sustained by his worker and who has endeavoured to his utmost to ensure such an incident is never repeated.

Consideration

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

Objective seriousness of the offence

67. 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].

68. 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].

69. 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.”

70. 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].

71. 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.

72. 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.

73. The Court of Criminal Appeal has examined the sentencing process with regard to the 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. His Honour Justice Basten at par 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.”

74. Further at par 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.”

75. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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.”

76. My findings about the offenders’ levels of culpability are based upon the following:

1. The risk of a worker being seriously injured as a result of falling from height whilst entering or exiting the bin of the log truck was obvious and foreseeable. The risk was one that was known, or ought to have been known, to BTTH and Mr Monk. Further, there was guidance material available regarding the risk of a falls from flatbed trucks.

2. The likelihood of the risk occurring was quite high. BTTH and Mr Monk failed to:

1. ensure a safe method of access to or egress from the bin – the only method of access involved climbing either via the back gate or over the walls via the HIAB loader crane;

2. implement and enforce a safe system of work for loading the truck that required workers to stand clear and prohibited them from assisting with the task of directing the load;

3. give workers a specific direction about not accessing the bin by climbing over the top, standing on the crane or reinforced beams of the truck to assist with loading;

4. ensure that there was a consistent work method implemented for the loading the truck that was known to the workers.

3. The necessary steps to eliminate or minimise the risk were readily available. Following the incident BTTH and Mr Monk identified and implemented several measures to manage the risk, including: developing a specific SWMS for the task of loading the log truck; providing training to its workers in the SWMS; placing warning signs on the truck; and fabricating a ladder which was attached to the rear of the truck to enable safe access to the bin.

4. There was no significant burden or inconvenience in implementing these steps.

5. The injuries suffered by Mr Morgan were catastrophic.

6. The maximum penalty for the offence is a fine for BTTH of $1,500,000 and for Mr Monk of $300,000, which reflects the legislature’s view of the seriousness of the offences.

77. Counsel for the defendants submitted that the offences should be assessed in the low range of objective seriousness, because Mr Monk had not directed the workers to climb into the bin. That is so, but as the agreed facts above record, both Mr Morgan and Mr Bennett had seen Mr Monk himself accessing the tray by climbing in and out when the back gate was closed. If the boss is doing it that way, he is in effect demonstrating how the workers can access the bin. I therefore reject the submission.

78. I find that BTTH’s level of culpability is in the mid range.

79. I find that Mr Monk’s level of culpability is in the mid range.

Deterrence

80. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

81. The penalty must reflect the need for specific deterrence. BTTH is no longer conducting a business but Mr Monk still conducts a tree removal business via his new company Baulkham Hills Trees Pty Ltd. He does the same work as was done by BTTH, which was correctly acknowledged by counsel for the defendants during oral submissions to be high risk work.

Aggravating factors

82. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Further details emerged from the Victim Impact Statement of Mr Morgan, which is dealt with below.

Mitigating factors

83. Neither defendant has any previous convictions for work, health and safety matters: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

84. Both defendants are otherwise of good character in a work, health and safety context: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which they took after the incident demonstrate this.

85. The defendants are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

86. The defendants both have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. They have taken positive steps to guard against the risk of an incident such as this ever happening again. They have brought their documentation and their procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

87. The defendants have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they accept responsibility for their actions and have acknowledged that the injury to Mr Morgan was caused by their actions.

88. Both defendants entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. 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) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give both defendants a 25% discount for their early pleas.

89. Both defendants gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. They co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to pay a fine

90. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

91. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

Financial Information provided in Mr Monk’s affidavit

92. In his affidavit (DX 1) Mr Monk deposed that BTTH has the following outstanding liabilities:

1. $164,271.65 plus interest to the Australian Taxation Office (ATO);

2. $16,787.99 for workers compensation premiums;

3. $16,000.00 of NAB credit card debt;

4. $37,149.11 equipment loan balloon payment currently due to Westpac on the tipper truck;

5. $21,268.16 payment on a Ford Ranger ute driven by Mr Monk.

93. In relation to his personal financial circumstances, Mr Monk said that he does not own any real property, has a personal income tax liability of $8,483 to the ATO, pays $126 per week in preschool fees and pays weekly rent of $1,050 for a property which is the residence of himself, his partner and their two children.

94. Mr Monk stated that over the last five years he has drawn approximately $1,000 per week from the business accounts of either BTTH or his current business, Baulkham Hills Trees Pty Ltd.

Financial Documents

95. Annexed to the affidavit of Ms Ng (PX 4) affirmed on 21 September 2020 were a number of financial documents that had been provided by the defendants’ legal representatives upon the prosecutor’s request.

96. The documents provided were:

1. Bank Statements of David Monk from May 2020 to September 2020 (Annexure C) with a closing balance of $591.14.

2. Bank Statements for Zippy Miss Pty Ltd trading as Fast Call Tree Services from January 2020 to August 2020 (Annexure D) with a closing balance of $90.19.

3. Bank Statements for Baulkham Hills Trees from January 2020 to the end of August 2020 (Annexure E) with a closing balance of $7,889.08.

97. Annexure G to the affidavit is an email from Westpac Bank that confirmed that the outstanding debt on equipment loans is $37,149.11.

98. At Annexure F is a copy of the Agreement for Purchase of Assets between BTTH and Zippy Miss Pty Ltd. According to Schedule 1, the purchase price was $10,000 which was calculated by subtracting $172,091 of lease liabilities from assets of $167,500 and adding a $14,591 purchase price premium. Mr Monk made no mention of Zippy Miss Pty Ltd in his own affidavit.

Additional financial documents

99. The prosecutor served a subpoena upon Mr Monk for additional financial material and tendered the material provided. This folder (PX 3) included a Profit and Loss Statement for Baulkham Hills Trees Pty Ltd for the period July 2019 to June 2020. In that year the company had nett earnings after expenses of $63,364.47, upon sales of $372,171.47. The Balance Sheet as at 30 June 2020 showed “owners drawings” of $168,396.13. This equates to $3,238 per week. Mr Monk in his own affidavit gave evidence of fixed costs of $1,050 rent per week and $126 per week for school fees for his daughter, a total of $1,176. Subtracting this figure from $3,238 left Mr Monk with a gross figure of $2,062 per week, after paying rent and school fees.

100. The additional financial material included Mr Monk’s NAB bank statements. On 18 May 2020 he banked $1,000 paid to him by Tabcorp Holdings. It was indicated from the Bar table that this was a win on a racehorse. Clearly Mr Monk has enough income to gamble, over and above what he needs to sustain his family. He has a betting account which was not put before the court.

Consideration of Capacity to Pay

101. There is no need to consider the capacity to pay of BTTH. It has no such capacity. It has ceased to trade and has sold its business to a new company set up by Mr Monk. More than once counsel for the prosecutor referred to this transfer as a “phoenixing” activity. That appears to be the case. Mr Monk said in his affidavit that because of adverse publicity he had to start up another company with a different name. But as counsel for the prosecutor submitted, that explanation makes no sense since he is still dealing with the public using the same business name of “Fast Call Trees”. There will be no reduction in penalty for BTTH.

102. Mr Monk really made no attempt to put on the kind of evidence needed by the courts to assess whether or not there is a reduced capacity to pay. He bore the onus in this regard. Attached to his affidavit there were no Profit and Loss Statements, no Balance Sheets, no tax returns, and no Statement of Income and Expenditure. It was left to the diligent solicitor for the prosecutor to fill in some of the gaps by obtaining material on subpoena. Even then, Mr Monk did not produce any tax returns. The court has no idea of his weekly expenses, over and above the evidence he gave regarding rent and school fees. The court was left to work out for itself that over and above these expenses, Mr Monk has funds of $2,000 per week (not $1,500 per week as submitted by counsel for the defendants). That alone demonstrates a significant capacity to pay a fine. His new tree business is a successful one, although it is a modest enterprise in size.

101. I find that the defendant David Monk has not satisfied the onus of showing that there should be a reduction in his fine because of any reduced capacity to pay.

Victim Impact Statement

104. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

105. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

106. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1). In the present case the defendants were convicted by formal orders made on 30 September 2020, and immediately after conviction the written Victim Impact Statement of Mr Morgan was received in evidence.

107. Mr Morgan’s Victim Impact Statement is dated 25 September 2020 (PX 5). Mr Morgan did not request the opportunity to read out the statement in court. Mr Morgan said that his catastrophic accident, which has left him paralysed from the waist down, has had the following effects upon him:

1. Sleeping – Mr Morgan can now only sleep on his back as any other position triggers severe nerve pain. He has been diagnosed with sleep apnea.

2. Eating – Mr Morgan has no control over his bladder or bowels which means that if he eats any food which is spicy or not cooked properly he has a bowel accident. He has to be very careful about what he eats. He has lost his sense of smell so he cannot even tell when he has had a bowel accident, leading to great embarrassment.

3. Sex life – despite treatment he has not been able to resume sexual intercourse with his partner. This also means that he and his partner have been unable to have any more children.

4. Skin – Mr Morgan develops pressure sores which take a long time to heal. To avoid developing pressure sores on his back he sometimes has to lie on his side, which leads to agony from nerve pain. A simple event such as a fall out of a wheelchair or a bad transfer will cause his skin to break down.

5. Bladder control – Mr Morgan has to self-catheterise every four hours to empty his bladder. He has constant urinary tract infections. Sometimes he has had to go to hospital with this problem.

6. Social impact – Mr Morgan feels out of place with his family and friends. He really only spends time socialising with other people in wheelchairs. Going out is difficult as many places are not wheelchair accessible or the toilets are unsanitary. In the back of his mind he is always fearful of having a bladder or bowel accident. The family has tried to go on a few short holidays by booking wheelchair suitable accommodation, but sometimes they have arrived and the rooms are completely unsatisfactory.

7. Financial impact – Mr Morgan and his partner have difficulty making ends meet, and his partner Therese now has to do shift work to bring in enough money to support the family.

8. Psychological and emotional impact – Mr Morgan described in graphic detail the pains and anguish he suffered while in Royal North Shore Hospital. He was transferred from hospital for rehabilitation but found that to be one of the hardest and darkest times of his life. He had strong suicidal thoughts.

108. Mr Morgan and his partner had a child six months prior to the injury. He has had to watch his daughter grow up from a wheelchair. He is no longer able to do physical things with her, or with an older son. Mr Morgan is extremely angry with his former employer.

109. Mr Morgan has had some psychological assistance, and now regards himself as having a second chance at life. At least he can be around his loved ones.

110. Mr Morgan was 34 years old at the time of the accident and is now 37 years old. His life, and the lives of those around him, have been forever blighted by the catastrophic injury which he suffered at work.

Training order

111. The prosecutor sought an order pursuant to s 241 of the Act that Mr Monk undertake a course in due diligence training for senior managers and company directors. Mr Monk consented to such an order, in the terms put forward by the prosecutor.

Costs

112. The defendant BTTH is to pay the prosecutor’s costs. The defendant David Monk is to pay the prosecutor’s costs agreed in the sum of $25,000.

Penalty

113. Penalty for Banana’s Truck & Tipper Hire Pty Ltd (2019/27571):

1. The defendant Banana’s Truck & Tipper Hire Pty Ltd was convicted on 30 September 2020.

2. The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order the defendant Banana’s Truck & Tipper Hire Pty Ltd to pay a fine of $225,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order the defendant Banana’s Truck & Tipper Hire Pty Ltd to pay the prosecutor’s costs.

114. Penalty for David Monk (2019/27593):

1. The defendant David Monk was convicted on 30 September 2020.

2. The appropriate fine is $60,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order the defendant David Monk to pay a fine of $45,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order pursuant to Section 241 of the Work Health and Safety Act 2011 (NSW) that the defendant David Monk:

1. Undertake a course in due diligence training for senior managers and company directors conducted by a provider that is a Registered Training Organisation, within six months of the date of these orders;

2. Provide evidence to the prosecutor of the satisfactory completion of such course.

6. Order the defendant David Monk to pay the prosecutor’s costs agreed in the amount of $25,000.

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Decision last updated: 02 October 2020