SafeWork NSW v Better Truck Repairs Pty Limited

[2021] NSWDC 37

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Better Truck Repairs Pty Limited [2021] NSWDC 37

Hearing dates:

23 February 2021

Date of orders:

3 March 2021

Decision date:

03 March 2021

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Better Truck Repairs Pty Limited is convicted.

(2)   The appropriate fine is $100,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Better Truck Repairs Pty Limited to pay a fine of $75,000.

(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 Better Truck Repairs Pty Limited to pay the prosecutor’s costs agreed in the amount of $30,000.

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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – inappropriate method used to transport heavy piece of plant – unqualified workers operating forklifts – maintenance work conducted on excavator bucket whilst it was suspended from the forklift tines – worker launched into the air when his foot came into contact with the front edge of excavator bucket when it slid off tines – gaps in existing WHS systems – inadequate risk assessment – absence of Safe Work Method Statement or safe operating procedure relevant to task at hand

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 4, 19, 32

Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 36, 37, 38, 39, 81, 83, 218, 219, Sch 3

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:

Australian Standard 2359.2-2013, Powered Industrial Trucks – Part 2: Operations, 2013

Safe Work Australia General Guide for Industrial Lift Trucks (July 2014)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Better Truck Repairs Pty Limited (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
C Magee (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Brown Wright Stein Lawyers (Defendant)

File Number(s):

2020/32203

Judgment

1. On 9 February 2018, workers were undertaking the task of removing the cutting edge of a heavy excavator bucket while it was suspended from forklift tines. While attempting to remove the bucket from the tines, the bucket slid off the tines and the foot of one of the workers came in contact with the front edge of the excavator bucket. This resulted in the worker being launched into the air and thrown onto the concrete floor leading to serious injury.

2. Better Truck Repairs Pty Ltd (“BTR”) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (“the Act”) it failed to comply with that duty and thereby exposed Mr Sheik Tazleem to a risk of death or serious injury contrary to s 32 of the Act.

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

The Risk

4. The risk is as described in par 11 of the Amended Summons as follows:

“The risk was a risk of workers, in particular Mr Tazleem, suffering serious injury or death as a result of being struck and/or crushed and/or otherwise coming into contact with an excavator bucket, due to its uncontrolled movement during repair, service or transport.”

Reasonably Practicable Measures

5. Paragraph 12 of the Amended Summons pleads particulars of the BTR’s failure to comply with the duty under s 19(1) of the Act as follows:

“The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Tazleem, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if not reasonably practicable to eliminate, the risk:

(a)   Undertaking an adequate risk assessment regarding repairing/servicing/transporting the excavator bucket, which:

(i)   identified the risk(s) associated with working on the excavator bucket;

(ii)   assessed the identified risk(s); and

(iii)   identified the most appropriate control measures that should be implemented to control the risk(s), such as those set out at paragraphs (b) – (e) below.

(b)   Developing, implementing and enforcing a safe work procedure for transporting, repairing, servicing or otherwise working on the excavator bucket, which:

(i)   required workers to undertake the task with the excavator bucket resting safely on the ground (for example, through the use of chocks or an appropriate stand); and/or

(ii)   prohibited workers from repairing, servicing or otherwise working on any heavy machinery or part (for example, excavator bucket) if it was being carried/suspended by a forklift; and/or

(iii)   required workers to unload and/or transport any large piece of machinery (such as the excavator bucket) using a suitably rated forklift truck and jib attachment, or a crane.

(c)   Developing, implementing and enforcing a safe operating procedure for use of a forklift, which:

(i)   prohibited workers from operating the forklift unless they held a valid licence authorising them to do so; and/or

(ii)   required forklifts to be shut down and the keys removed and secured, only to be accessed and used by workers with a valid licence authorising them to operate the forklift; and/or

(iii)   prohibited workers from using the forklift for a purpose for which it was not designed or equipped, for example, as a stand/holder on which to suspend machinery or parts while they were being repaired, serviced or otherwise worked on; and/or

(iv)   prohibited workers from unloading or transporting any loads by suspending them under the tines of a forklift, unless a suitable attachment was used.

(d)   Providing adequate information, instruction and training to workers, in particular Messrs Tazleem and Lean, regarding use of the forklift when working on heavy machinery (or parts of heavy machinery), and in particular in relation to the safe work procedure and safe operating procedure described in paragraphs (b) and (c) above.

(e)   Providing adequate supervision to workers to ensure that the safe work procedure described in paragraphs (b) and (c) above, was complied with.”

Background

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

7. BTR conducted a business or undertaking that included the service and repair of heavy vehicles and associated parts. BTR operated from a site in South Windsor, New South Wales (“the Site”).

8. Mr Joseph Sultana was the sole Director and Secretary of BTR. Mr Sultana was employed by BTR as its Head Mechanic and Supervisor.

9. JP Business Consulting Pty Ltd (“JPBC”) was a corporation which conducted a business or undertaking that involved the supply of labour hire workers. JPBC entered into a contractual agreement with BTR to supply workers to BTR and to manage payroll and workers compensation. BTR’s workers were employed by JPBC, including Mr Tazleem, Mr Kye Lean and Mr David McCormack. JPBC issued payslips bearing its name, by email, to workers who performed work at the Site. Workers never met with anyone from JPBC and some were unaware they were employed by JPBC.

10. All workers were recruited, interviewed and offered work by BTR. Workers were inducted, trained and given directions by BTR. They wore BTR uniforms and BTR provided all PPE and tools.

11. BTR engaged Work Health and Safety Australia Pty Limited (“WHSA”), an external contractor with expertise in work, health and safety matters, to assist BTR in managing work, health and safety. WHSA, in consultation with BTR:

1. Developed comprehensive work health and safety induction and associated training materials.

2. Conducted bi-monthly work health and safety training meetings at the site by training modules, including risk management (“WHS Meetings”).

3. Conducted periodic inspections of the Site.

12. BTR was a member of the Motor Traders Association of New South Wales (“MTA”).

13. BTR had control and management of an Enforcer Forklift Truck (Model FD40T-DMA M Series 40, serial number: 13403392) (“the forklift”). The forklift was used to transport materials and parts.

14. Mr Tazleem, a Diesel Mechanic, had been working for BTR for approximately one week at the time of the incident. Mr Tazleem was a Fijian National who held a driver’s licence and a forklift licence from Fiji (which did not authorise him to operate a forklift in New South Wales).

15. Mr Lean, a first-year apprentice, had been working for BTR for approximately one and a half months at the time of the incident. At the time he commenced, Mr Lean completed training, including risk management training, which had been arranged by BTR.

16. Mr McCormack was employed by BTR as a Workshop Manager. Mr McCormack was not a mechanic and had no experience doing mechanical work. Prior to commencing work at BTR, Mr McCormack managed workshops in the heavy vehicle mechanical industry. When he commenced work at BTR, Mr McCormack completed risk management training. Mr McCormack was responsible for ordering parts, booking mechanical work, organising job sheets and preparing job cards. Although his title was “Workshop Manager”, in practice he only supervised the workers in the workshop from time to time when Mr Sultana was not present. At the time of the incident, Mr McCormack had been working on the Site for approximately 10 months.

The Incident

17. On or around 9 February 2018, BTR received a work order from a customer to remove and re-install the cutting edge of an excavator skeleton bucket.

18. At approximately 2.00pm, Mr Sultana instructed Mr Tazleem to undertake work on the excavator bucket because Mr Tazleem was an experienced mechanic and he had informed Mr Sultana that he had performed this type of work in previous roles. The estimated weight of the bucket was between 1 and 2.5 tonnes. The task involved removing the cutting edge from the excavator bucket, cleaning the front area of the bucket where the blade had been removed, rotating the blade and then refitting the blade onto the bucket. Mr Sultana had instructed Mr Tazleem to remove the cutting edge only.

19. Prior to leaving the workshop to obtain parts needed for the task, Mr Sultana gave instructions to Mr Tazleem on how to remove the cutting edge, which involved demonstrating how to remove the bolts of the cutting edge with a grinder, including the removal of any stubborn bolts. Mr Sultana did not instruct Mr Tazleem to move the bucket, operate the forklift or perform any of the components of the task from underneath the bucket. Mr Sultana also spoke to Mr McCormack about the task before he left the workshop, including the scope of the task.

20. Mr Sultana had already set up the bucket before giving Mr Tazleem instructions to undertake the task. Mr Sultana had taken the bucket off a tipper truck using the forklift and the bucket was suspended from the forklift tines. The tines were pushed together and went through the opening under the rear pin of the bucket. The bottom of the bucket was close to the ground at approximately ankle height.

21. To remove the cutting edge from the bucket, Mr Tazleem used a grinder to remove the nuts and bolts. Mr Tazleem was assisted by Mr Lean. Mr Sultana did not instruct Mr Lean to undertake any part of the task.

22. Once the cutting edge was removed, the underside surface of the bucket needed to be ground to clean the surface in order to re-attach the rotated cutting blade to the excavator bucket. To grind clean the bucket edge and not work under the suspended bucket, Mr Tazleem and Mr Lean decided to take the excavator bucket off the forklift. Mr Sultana had not instructed either Mr Tazleem or Mr Lean to operate the forklift, or move the bucket, to undertake the task.

23. Mr Tazleem operated the forklift and drove the forklift into the workshop. Mr Tazleem and Mr Lean then tried to shift the bucket manually. When the bucket did not move very far, Mr Tazleem and Mr Lean tilted the tines of the forklift forward and attempted to push the bucket off the forklift.

24. Mr Tazleem then stood in front of the bucket to observe why the bucket was not sliding off, resulting in his feet coming in contact with the tip of the bucket while Mr Lean operated the forklift. The bucket, which had been resting by the rear pin on the tip of the tines, then unexpectedly shifted forward and slipped off the tines of the forklift. Mr Tazleem was launched into the air when the bucket slipped off the tines of the forklift and rolled backwards. The bucket then continued to rock back and forth. Mr Tazleem landed on his shoulders and head, on the concrete floor with his head lying near the rocking bucket. Mr Tazleem was taken to Westmead Hospital.

25. Prior to the incident, Mr McCormack had checked on the workers several times and told them to come and see him if they needed anything. Mr McCormack did not witness the incident. However, he stated that one minute he saw them grinding away while he was helping another worker, and the next minute he heard yelling and screaming and saw the bucket and forklift had moved from the back area to the front of the workshop. Mr McCormack was aware that they were not asked to touch the forklift and were told to leave the job when it was finished.

Injuries

26. Mr Tazleem sustained serious injuries, including a spinal injury (anterolisthesis of the C4 on C5 vertebra) and a left elbow fracture.

27. Mr Tazleem returned to work on full pre-injury work hours on 2 May 2018. On 6 November 2018 he resigned from JPBC. Mr Tazleem has not performed any work at the Site since that time.

Guidance Materials

Legislation

28. BTR was required, under cll 34-38 of the Work Health and Safety Regulation 2011 (“the Regulation”) to:

1. Identify reasonably foreseeable hazards that could give rise to a risk to health and safety.

2. Eliminate identified risks so far as is reasonably practicable.

3. If it is not reasonably practicable to eliminate the risk, then minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control.

4. Maintain implemented control measures so that they remained effective.

5. Review, and if necessary, revise risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.

29. BTR was required, under cl 39 of the Regulation, to ensure that information, training and instruction provided to a worker was suitable and adequate, having regard to:

1. The nature of the work carried out by the worker.

2. The nature of the risks associated with the work at the time the information, training or instruction is provided.

3. The control measures implemented.

30. BTR was required, under cl 218 of the Regulation to ensure that the forklift was:

1. Equipped with lifting attachments that are suitable for the load to be lifted or moved by the truck.

2. Operated in a manner that ensures that the risks to the operator of the truck and other persons at or near the workplace that arise from systems of work and the environment in which the truck is used:

1. are eliminated so far as is reasonably practicable, or

2. if it is not reasonably practicable to eliminate the risks, are minimised so far as is reasonably practicable.

31. BTR was required, under cl 219(5) of the Regulation, to ensure that so far as is reasonably practicable, no loads are suspended or travel over a person unless the plant is specifically designed for that purpose.

32. BTR had obligations under the Act and Regulation to ensure that workers would only operate forklifts if they were authorised to do so. The relevant provisions are:

1. Clause 81 of the Regulation provides: “a person must not carry out a class of high-risk work unless the person holds a high-risk work licence for that class of high-risk work…”.

2. Schedule 3 of the Regulation provides that the operation of a forklift is classed as high-risk work.

3. Clause 83(a) of the Regulation provides: “…a reference to a high-risk work licence includes a reference to an equivalent licence – granted under a corresponding WHS law…”.

4. Section 4 of the Act provides: “…corresponding WHS law means: a law of an Australian jurisdiction that has the same name as this Act; and a law of an Australian jurisdiction that is prescribed by the Regulations as a corresponding WHS law”.

General Guide for Industrial Lift Trucks (July 2014) (Safe Work Australia)

33. Prior to the incident, the Safe Work Australia General Guide for Industrial Lift Trucks (July 2014) (“the Guide”) was published and available. The Guide provides practical guidance to persons conducting a business or undertaking on how to manage health and safety risks involving industrial lift trucks.

34. The Guide outlines the safe use of industrial lift trucks when working with loads in the workplace, including advising that:

1. The operator must ensure that the industrial lift truck is equipped with lifting attachments that are right for the load to be lifted or moved by the truck and that the attachment is securely connected to the industrial lift truck prior to operation to prevent it separating from the lifting media.

2. The operator must use an industrial lift truck that is designed to lift or suspend the load to be lifted.

3. Lifting attachments must be suitable for the load and within the safe working limits of the industrial lift truck.

4. When suspending or lifting a load the operator must ensure, so far as reasonably practicable, that it is not lifted over a person unless the industrial lift truck is specifically designed for that purpose.

5. Loads should be firmly placed against the carriage or back-rest with the mast tilted back enough to stop the load slipping, falling or rolling off the fork arms.

6. Loads that have the ability to slip, fall or roll off the fork arms or pallet should be restrained with straps or similar.

7. When handling a suspended load the operator should secure the load across both fork arms for balance, using an attachment designed to be used on the industrial lift truck.

Australian Standard 2359.2-2013 – Powered Industrial Trucks

35. The Australian Standard AS2359.2-2013 – “Powered Industrial Trucks – Part 2: Operations”, provides relevant guidance related to forklift load handling, including:

1. Any attachments that are to be used are approved for use with that truck and are identified on the truck (3.2(b)).

2. A truck shall not be used for any purpose for which it is not designed or equipped (3.3(l)).

3. Only loads which are safely arranged and which are within the actual capacity of the truck and or attachment combination shall be carried on a truck (3.3(m)).

4. Operators shall ensure that the load is stable and evenly distributed on both fork arms prior to lifting and when travelling (3.7(f)).

5. Slings, chains, or the like, shall not be used to suspend a load from fork arms unless approved by the truck manufacturer (3.12 (f)).

6. No person shall be permitted to stand or pass under elevated fork arms and/or attachments, whether loaded or empty unless working under maintenance conditions and using appropriate supporting devices (3.4 (e)).

1. Fork arms and attachments shall be lowered so that they are as close as possible to, and if possible touching, the operating surface (3.5 (d)).

2. The motive power should be turned off and the key removed (where fitted). In cases where other means such as a key pad are used to prevent use of a truck by unauthorized personnel, these systems shall be used to turn off the power (3.5 (e)).

Systems of Work Prior to the Incident

36. As recited earlier in this judgment Mr Sultana had engaged WHSA to assist BTR in managing work health and safety.

37. Workers including Mr Tazleem and Mr Lean were trained on the job. The training consisted of working alongside Mr Sultana, receiving verbal instructions and demonstrations of tasks, including the removing and re-fitting of cutting edges from buckets. BTR did not have a documented safe system of work for the task of removing and re-fitting cutting edges from buckets.

38. When workers started at BTR, they were provided with a “Worker Induction Handbook” and a “Work, Health and Safety General Rules & Induction Booklet”, the contents of which included WHS matters, including safe use of machinery and plant and workshop safety. Mr Tazleem, Mr McCormack and Mr Lean had each completed these induction materials.

39. BTR’s WHSE Management Plan stated that Mr Sultana was responsible for implementing the WHSE Management Plan. Safety signage was displayed in and around the workshop, including in respect of safe forklift operation. BTR held regular verbal toolbox meetings with workers about safety at the Site. An anonymous phone line was implemented for workers to use to enable them to raise any health and safety concerns with WHSA.

40. Workers at BTR operated the forklift truck from time to time, even some who did not hold a forklift licence valid in New South Wales. Workers reported directly to Mr Sultana.

41. BTR did not undertake an adequate risk assessment regarding repairing, servicing or transporting the excavator bucket. BTR did not have a safe work procedure which prohibited workers from working on parts of machinery suspended from forklifts.

42. BTR did not implement and enforce safe operating procedures for the forklift, which:

1. Prohibited unauthorised workers from operating the forklift.

2. Required forklifts to be shut down and isolated, with keys only able to be accessed by workers authorised to operate the forklift.

3. Prohibited using the forklift for a purpose for which it was not designed or equipped, such as a stand/holder on which to suspend machinery.

4. Prohibited workers from transporting loads by suspending them under the tines of a forklift, unless a suitable attachment was used.

Systems of Work Following the Incident

43. Following the incident, BTR moved the bucket by contracting a mobile crane and crew at a cost of $380 plus GST.

44. In response to Improvement Notices issued by SafeWork NSW, BTR:

1. Purchased a further jib attachment for the forklift at a cost of $1,447.60 (including GST).

2. Purchased and installed a load plate for the forklift.

3. Engaged a new work, health and safety consultant, Employsure Pty Limited (“Employsure”).

4. Conducted onsite training regarding forklifts and created a secure forklift register.

5. Put systems in place to restrict the operation of the forklift to licensed drivers.

Evidence for the Defendant

Affidavit of Joseph Andrew Sultana

45. Mr Sultana swore an affidavit on 16 February 2021. Mr Sultana has been the sole director of BTR since it was incorporated on 14 July 2008. He is currently BTR’s head mechanic and head supervisor. Mr Sultana held these roles at the time of the incident.

46. Mr Sultana is a qualified automotive, diesel mechanic and plant mechanic. He completed his automotive mechanic apprenticeship in 2007 and was recognised as a runner-up in that year for the NSW Apprentice of the Year Award. He has over 17 years experience in heavy and light vehicle mechanical services.

Overview of BTR

47. BTR primarily services the local government area of the City of Hawkesbury and its main customer base is made up of local small and medium-sized businesses. The business primarily generates its business through word-of-mouth recommendations.

48. Currently, BTR employs 13 people. This includes Mr Sultana, his wife Melissa who works as the Office Manager, a workshop manager, a parts interpreter, a qualified automotive and diesel mechanic, office staff and four automotive mechanic apprentices. The apprentices attend a number of training courses with the MTA and a representative of MTA attends the Site on a monthly basis, for about three to four hours, to conduct workplace training with the apprentices.

Systems before the Incident

49. Mr Sultana stated that both he and BTR personally took their respective duties under the Act seriously and took steps to mitigate contravention of the Act.

50. Mr Sultana explained that around February 2014 the business experienced growth and so WHSA was engaged for its WHS expertise to help manage WHS and assist the business to meet its legislative obligations as the business continued to grow. Mr Sultana relied on the expertise and advice of WHSA to adopt and implement safe work practices on the Site.

51. WHSA, in consultation with Mr Sultana and BTR, developed comprehensive work health and safety induction and associated training materials for workers and managers, conducted WHS training meetings at the Site on various modules, conducted periodical inspections of the Site, and discussed systems of work and any issues or concerns raised by the workers, on a bi-monthly basis. Mr Sultana explained that he rectified any issues raised by WHSA at the Site and on 4 September 2014 BTR successfully passed the annual Due Diligence Audit conducted by WSHA. Every subsequent audit was passed.

52. On 10 February 2017 and 17 February 2017 BTR conducted a toolbox talk with workers in relation to the general operation of the workshop, including workshop cleanliness. For the period February 2014 to April 2018, during its engagement with BTR, WHSA invoiced BTR a total of $24,916.50.

53. Mr Sultana stated that due to the continued growth of the business, in early 2017 he hired Mr McCormack through JPBC as a Workshop Manager on a full-time basis, with the intention that he would supervise the workshop when Mr Sultana was absent. Mr McCormack had extensive experience in managing workshops within the heavy vehicle industry. JPBC paid Mr McCormack a salary of $100,000.

54. BTR required Mr McCormack to complete an induction on 28 February 2017 and a risk management course on 17 August 2017. This course specifically involved compliance with work health and safety legislation and regulations, including risk management with respect to machinery. Mr Sultana also had personally completed the WHS Risk Management Course for Managers and Supervisors that BTR had developed with WHSA in 2014.

55. Mr Sultana listed the safety systems BTR had in place prior to the incident:

1. A WHSE Management Plan.

2. 2014, 2017 and 2018 versions of the Work, Health and Safety Policy Statement displayed on the noticeboard in the lunchroom at the Site.

3. A Workplace Injury Management and Return to Work Policy displayed on the noticeboard in the lunchroom at the Site.

4. Safety signage displayed in and around the workshop bays, including in respect of safe operation of forklifts.

5. A Training and Competency Register, which included forklifts.

6. Provision of appropriate Personal Protective Equipment and tools.

7. Bi-monthly WHS Meetings with WHSA in attendance on each occasion.

8. Regular verbal toolbox meetings with the workers about safety at the Site.

9. An anonymous phone line implemented for workers to use to raise any health and safety concerns or issues with WHSA.

10. Maintenance of clean and well-organised workshop bays.

11. SWMSs on: Safe Use of Oxy Acetylene; Welding; Repair Air System Leaks; Component Repair and Replace; Overhaul Cooling System; Servicing 250,750,1000,2000 HRS; Wheel Replacement and Repair; Check and Diagnose Transmission Problem; Manual Handling; Working on Road Verges; Component Diagnostics and Repair.

56. Physical copies of the SWMSs are kept in a clearly marked folder labelled “SWMS”, in the workshop and also in each of BTR’s trucks, used by BTR’s workers, to conduct mobile heavy and light vehicle mechanical services and repairs, away from the Site. Mr Sultana stated that he instructed each worker to familiarise themselves with the SWMSs and to complete any work that related to them in accordance with the SWMSs.

57. Mr Sultana acknowledged on behalf of BTR that BTR only had informal systems in place in respect of the use of forklifts. Mr Sultana explained in his affidavit that he is licensed to operate the forklifts, on the Site (including the forklift involved in the incident) and that he would only allocate work that involved operation of a forklift to workers who held a valid licence to operate the forklift. He said that he conducted regular maintenance checks on the forklifts, to ensure that they were in a safe condition. He required workers using forklifts to undertake a pre-start safety check and to ensure that the forklift was parked and shut down after the task was completed. Mr Sultana stated that if and when he observed workers operating a forklift who were not licensed to do so, he would generally tell them to not operate the forklift.

58. Mr Sultana also acknowledged in his affidavit that BTR only had informal systems in place in respect of tasks involving excavator buckets. Mr Sultana explained that he is sufficiently qualified to undertake work on excavator bucket tasks. He undertook a risk assessment of any work involving excavator bucket tasks prior to commencing any work. He conducted a visual and pre-start inspection of any plant and tools to be used in the performance of excavator bucket tasks. He emphasised that all workers completed comprehensive site inductions and WHS training. He went on to say that BTR usually provided access to safe and adequate PPE and access to safe and adequate stands and chocks where necessary for the performance of any task involving work on excavator buckets.

59. Mr Sultana said from in or about 2012, he would occasionally allocate excavator bucket tasks to other workers based on their competency level, experience and qualifications. Mr Sultana stated that he provided clear and detailed instructions, conducted demonstrations where necessary and held discussions with any worker involved in performing work on any excavator bucket tasks, prior to any work being undertaken. He said: “I ensured that all workers understood that if they had any questions or concerns regarding any part of any excavator bucket task allocated to them, to come and speak with me, or if I am not on Site, to call me on my mobile phone”.

Training Systems

60. Mr Sultana stated that all workers received on-the-job training and verbal instruction from him on how to safely perform work at the Site. He generally told workers, including Mr Tazleem and Mr Lean, not to operate equipment and machinery without approval from him or a licence to do so.

61. In early 2014, Mr Sultana completed a “Worker Induction Handbook” and a “Staff Work, Health and Safety General Rules & Induction Booklet”.

62. Mr McCormack completed the following induction and training with BTR: a ‘Personnel Recruitment Kit”, on 28 February 2017; a “Worker Induction Handbook”, on 28 February 2017; a “Staff Work, Health and Safety General Rules & Induction Booklet”, on 28 February 2017; training on Light Vehicle Hoist operation and accompanying Safe Work Procedure on 12 May 2017; training on Heavy Vehicle Hoist operation and accompanying Safe Work Procedure on 12 May 2017; work, health and safety risk management training on 17 August 2017; and “Nobody is Listening” training on 10 November 2017.

63. Mr Sultana stated that he is aware Mr Lean completed the following induction and training with BTR: a “Personnel Recruitment Kit”, on 18 December 2017; a “Worker Induction Handbook”, on 18 December 2017; a “Staff Work, Health and Safety General Rules & Induction Booklet”, on 18 December 2017; work, health and safety and risk management training, on 18 December 2017; training on Light Vehicle Hoist operation and accompanying Safe Work Procedure on 18 December 2017; training on Heavy Vehicle Hoist operation and accompanying Safe Work Procedure on 18 December 2017; training on conflict in the workplace, bullying and harassment, on 18 December 2017; and “Nobody is Listening” training on 12 February 2018.

64. Mr Sultana stated that Mr Tazleem provided BTR with: a Certificate of Apprenticeship that stated that he had completed a craft apprenticeship in the trade of “Automotive Mechanic”, from 20 May 2008 to 20 May 2012, in Fiji; a Certificate III in Engineering – Mechanical Trade (Diesel Fitting), awarded through Australia Pacific Technology College, under the auspices of TAFE Queensland, in July 2016. His resume stated that he had been a “WHS member” of a workshop committee. Based on these documents and discussions with Mr Tazleem, it was Mr Sultana’s understanding that at the time of the incident he had 10 years of relevant experience in the heavy vehicle and plant mechanical services and repairs industry in Fiji.

65. On 5 February 2018, Mr Sultana completed a two hour verbal induction and “walk-around” Site induction with Mr Tazleem. Mr Tazleem completed the following with BTR: a “Worker Induction Handbook” and a “Staff Work, Health and Safety General Rules & Induction Booklet”.

The Task

66. On or around 9 February 2018, when BTR received a work order from a customer to remove and reinstall the cutting edge of an excavator bucket, Mr Sultana conducted a visual inspection and risk assessment on all steps that would be required. However, he admitted he did not document that inspection or risk assessment.

67. In his affidavit, Mr Sultana explained that the task involved removing the cutting edge from the excavator bucket, cleaning the front area of the bucket where the blade had been removed (Phase One), rotating the blade and then re-fitting the blade onto the bucket (Phase Two).

68. In Mr Sultana’s assessment, neither Phase One nor Phase Two required the operation of the forklift by Mr Tazleem. Mr Sultana explained that this is because he had already transported the excavator bucket to the designated work area, namely Bay 1, to undertake Phase One and Phase Two, prior to giving Mr Tazleem any instructions to undertake any work on the job.

69. Mr Sultana said his instructions and a demonstration to Mr Tazleem in respect to his assigned task, being Phase One, included:

1. How to remove the ten bolts from the cutting edge of the excavator bucket.

2. How to use the angle grinder to remove the bolts if the bolts were seized and needed to be cut off.

3. How to clean the surface of the cutting edge once the bolts had been removed, and the appropriate tools to use in respect of this part of the task.

4. What Personal Protective Equipment to wear.

5. Not to undertake any further work in respect of the work order until he had returned with the new bolts.

70. Mr Sultana recalled that Mr Tazleem had advised him that he was capable of performing the task as he had undertaken similar work in his previous role. Mr Sultana recalled that he responded with words to the effect “do not perform any other work on the excavator bucket until I return with the parts”. Mr Sultana said that Mr Tazleem indicated to him that he understood his instructions, and Phase One. Mr Sultana had also said to Mr Tazleem words to the effect “if you have any questions talk to David or call me on my mobile”.

71. Based on Mr Tazleem’s qualifications, experience and the instructions given, Mr Sultana said he made the assessment that Mr Tazleem was suitably qualified and experienced to be able to work without direct supervision. Mr Sultana said that he did not instruct Mr Tazleem to move the excavator bucket, operate the forklift or perform any of the components of the task from underneath the excavator bucket.

72. Mr Sultana said he spoke to Mr McCormack about the task allocated to Mr Tazleem before he left the workshop to collect some parts. Mr Sultana said that he did not instruct Mr Lean to undertake any part of the task.

Contrition and Remorse

73. On behalf of BTR, Mr Sultana accepted responsibility for the failings in its systems that gave rise to the risk on 9 February 2018. He acknowledged that the risk assessment that was performed was not adequate and that BTR should have developed a formal safe work procedure for transporting, repairing, and servicing excavator buckets. He also acknowledged that BTR should have developed, implemented and enforced a formal safe operating procedure for use of the forklifts at the Site, to ensure that they were not used by workers who did not hold a valid licence, and to ensure that workers did not operate the forklifts in a manner for which they were not designed, including using a forklift to suspend machinery or parts while they were being repaired or serviced. Mr Sultana accepted that BTR did not adequately inform, instruct and train Mr Tazleem and Mr Lean in relation to the safe work procedure for the task performed and the use of the forklift.

74. On behalf of BTR, Mr Sultana acknowledged that the serious injuries suffered by Mr Tazleem were due to the failings in BTR’s systems. Mr Sultana expressed personal remorse about the injury suffered by Mr Tazleem and said that the incident has affected him and his wife Melissa deeply. Mr Sultana said he personally visited Mr Tazleem in hospital on the afternoon of the incident and four times following. He said he fully cooperated with and supported Mr Tazleem’s return to work.

75. Mr Lean is still employed by BTR.

Systems after the Incident

76. Since the incident, BTR has only undertaken the task of removing and reinstalling a cutting edge of an excavator bucket, at the Site, on two occasions. On each of those occasions, the work was undertaken in the following way:

1. The excavator bucket remained attached to the excavator, at all times.

2. The excavator was delivered to the Site in a table-top truck or float trailer truck.

3. The excavator with the attached excavator bucket was unloaded from the truck by the client or the float trailer truck driver, so that it was resting safely on the ground in the workshop yard at the Site.

4. The task did not (and does not) require BTR to use a forklift, or any jib attachment, as none of the transporting, unloading or loading of the excavator (and the excavator bucket attached to the excavator), was required to be carried out by BTR, or any of its workers.

5. The task of removing and reinstalling the cutting edge of those excavator buckets was not completed while the excavator bucket was being carried or suspended by any forklift. Rather, the excavator bucket was safely resting on the ground, at the Site, at all times.

77. On 10 February 2018, immediately following the incident, Mr Sultana conducted a full service and maintenance check on the forklift. On 11 February 2018, he instructed all workers, via text message, not to operate any machinery or conduct high risk work without a correct licence. On 11 February 2018, an Incident Report was completed. On 12 February 2018, Mr Sultana personally conducted WHS training with Mr Lean, reviewed and implemented a SWMS in relation to the task in consultation with Wescranes (the external contractor BTR had engaged to assist with completing the unfinished task). He allocated the task to himself in accordance with the new SWMS. He temporarily removed the forklift from the workshop.

78. In response to the incident and the Improvement Notices issued by SafeWork NSW, Mr Sultana stated that BTR took the following measures:

1. Developed and implemented secure storage of the forklift keys, which are accessible only by those workers who hold a current High Risk Work Licence.

2. Developed and implemented a High Risk Work Licence Register.

1. Purchased a new load rated jib attachment for the forklift and ensured that the forklift was suitably load rated for the jib attachment by having the load rating plate of the forklift replaced to reflect the load capacities of the jib attachment lift points.

2. Purchased new fork tines and a wingback seat for the forklift.

3. Purchased a load plate for the forklift.

4. Developed new safe operating procedures, in consultation with Employsure, including in relation to the safe use of forklifts and the transporting, repairing, servicing or otherwise working on excavator buckets.

79. The development and implementation of the documented systems:

1. Restricted the operation of the forklift, at the Site, to licensed forklift drivers only.

2. Restricted the operation of the forklift for a purpose for which it was not designed or equipped, e.g. as a holder on which to suspend machinery or parts while they were being repaired, serviced or otherwise worked on.

3. Prohibited workers from unloading or transporting any loads by suspending them under the tines of a forklift, unless a suitable attachment is used.

80. On or around 9 May 2018, Mr Sultana arranged a toolbox talk with all workers, including Mr Lean and Mr Tazleem, on forklift safety. On 29 June 2018, he and his wife conducted additional training for all workers of BTR, including Mr Tazleem and Mr Lean, where each worker received training on the new SOPs, risk management, traffic management, manual handling, ladders, code of conduct, and office health solutions. Workers also were required to watch a number of safety videos. On 10 April 2019 BTR issued a memorandum to all workers, in relation to “Workshop Cleanliness”. From 5 June 2019 (following the cessation of the engagement of Employsure) to the present time, Mr Sultana works in consultation with BTR workers, to carry out regular WHS training, on a range of topics. Each worker has the opportunity to choose, research and present on a topic, relevant to the work that BTR carries out. These training sessions occur on a monthly basis. A Coronavirus Policy Memorandum was also issued to all workers on 23 March 2020.

81. On 10 February 2021, workers received an email with the following documents attached: draft Excavator Bucket SWP; draft Updated Forklift SOP; a copy of the Australian Standard 2359.2-2013 – Powered Industrial Trucks; a copy of the General Guide for Industrial Lift Trucks (Safe Work Australia). Workers were given an opportunity to provide feedback on these documents. On 12 February 2021, BTR conducted training with workers on the Excavator Bucket SWP and the Updated Forklift SOP. Subsequently, the Excavator Bucket SWP and Updated Forklift SOP were implemented at the Site.

Corporate Citizenship and Achievements

82. On or around 15 August 2017, Mr Sultana was awarded “finalist” in the “Outstanding Business Person of the Year” category of the Hawkesbury Local Business Awards. On 15 August 2017, BTR won the “Most Outstanding Automotive Services” category of the Hawkesbury Local Business Awards and was a “finalist” in the same category, in 2018 and 2019.

Charitable Works and Community Contribution

83. BTR has supported local pre-schools, primary schools and high schools through the provision of work experience placements since 2019, supporting the fundraising activities of school students, and collaborating with and providing sponsorship for school competitions and programs. In June 2018, BTR participated in, paid for and sponsored an advertisement with a local radio station targeted at safety and safe driving in school zones. In January 2019 BTR collected donations for Rural Aid Australia going towards drought relief for Australian farmers.

Consideration

84. 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

85. 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].

86. 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].

87. 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.”

88. 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].

89. 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.

90. 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.

91. 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. Justice Basten at [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.”

92. Further at [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.”

93. At [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.”

94. My findings about BTR’s level of culpability are based upon the following:

1. The risk of a worker being struck, crushed or otherwise coming into contact with an excavator bucket, due to its uncontrolled movement during repair, service or transport was a foreseeable one. There was sufficient Guidance Material available at the time of the incident concerning the risk.

2. The likelihood of the risk occurring was significant. BTR failed to:

1. use an appropriate method of transporting the heavy piece of plant;

2. prevent workers from repairing the bucket while it was suspended from the forklift tines;

3. ensure that a licensed forklift driver was used while the bucket needed repairing;

4. adequately supervise inexperienced workers;

5. provide adequate instructions as to the task being undertaken and the mechanism by which the task should be undertaken;

3. The potential consequences of the risk were very serious and included serious injury or death.

4. Steps to eliminate or minimise the risk were well-known and readily available.

5. The burden or inconvenience of steps to be implemented was not great. BTR took the appropriate steps promptly after the incident. The cost of having a qualified mobile crane and crew move the bucket was not high. BTR had no issue post-incident in purchasing the necessary jib attachment and load plate. Nor did it take long for its training systems to be updated.

6. The injuries suffered by Mr Tazleem were serious.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. BTR had taken its safety obligations seriously before this incident, but as counsel for BTR accurately put it, there were gaps in the formal documented safety system.

95. I find that BTR’s level of culpability is in the mid range.

Deterrence

96. 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]. Unfortunately, cases involving forklifts, often operated by unlicensed workers, come before this court on a regular basis.

97. The penalty must reflect the need for specific deterrence. BTR is still conducting a business. Its operations involve heavy and light vehicle mechanical services and repairs, the continuing engagement of young workers and the use of forklifts.

Aggravating Factors

98. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

99. BTR does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

100. BTR is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. BTR has been in business for 13 years. Further, BTR is involved in charitable and community projects.

101. BTR is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

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

103. BTR has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Tazleem was caused by its actions.

104. BTR 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 BTR a 25% discount for an early plea.

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

Capacity to Pay a Fine

106. 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.

107. 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.”

108. I accept the submission of counsel for BTR that it is a successful small business with a turnover of around $2,000,000 per annum, which makes a modest profit. I will take these matters into account in fixing a penalty.

Costs

109. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the amount of $30,000.

Penalty

110. My orders are:

1. Better Truck Repairs Pty Limited is convicted.

2. The appropriate fine is $100,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Better Truck Repairs Pty Limited to pay a fine of $75,000.

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 Better Truck Repairs Pty Limited to pay the prosecutor’s costs agreed in the amount of $30,000.

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Decision last updated: 03 March 2021