SafeWork NSW v BSA Limited (No. 3) - [2023] NSWDC 417

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417
Hearing dates: 29 September 2023
Date of orders: 16 October 2023
Decision date: 16 October 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   BSA Limited was convicted on 29 September 2023.
(2)   The appropriate fine is $600,000 but that will be reduced by 10% to reflect the early plea of guilty.
(3)   Order BSA Limited to pay a fine of $540,000.
(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)   Reserve all questions of costs.
(6)   Direct that costs be resolved by the following steps:
(a)   The defendant is to file and serve its written submissions on costs by 30 October 2023.
(b)   The prosecutor is to file and serve its written submissions on costs by 13 November 2023.
(c)   The defendant is to file and serve any written submissions in reply in relation to costs by 20 November 2023.
(d)   The parties are to inform my Associate by 27 November 2023 whether the issue of costs can be dealt with on the papers, or whether either party wishes to have a hearing date allocated for oral submissions in relation to costs.

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 to parts of the Summons – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements
OTHER – worker installing satellite dish and associated cabling – fatal electric shock following contact with live wire and earth wire underneath the house – failure to provide and maintain system of work – requiring lock or tag on main switch or meter box where technician required to isolate power – requiring use of volt stick – failure to provide adequate information, training, instruction and supervision concerning isolation of power, use of a lock or tag, use of a volt stick and conduct of an adequate risk assessment
CAUSATION – relevant principles – findings of fact – whether acts of the defendant were a substantial or significant cause of the death – common sense approach – application of such a finding

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Brzozowski v R [2023] NSWCCA 129
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Campbell v The Queen [1981] W.A.R. 286
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Facenfield v R

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWDC 417
Decision Date: 16 October 2023

CaseChat Overview and Summary

SafeWork NSW initiated proceedings against BSA Limited in relation to the death of a worker installing a satellite dish. The deceased worker received a fatal electric shock after coming into contact with a live wire and an earth wire located underneath a house. The court heard that BSA Limited had failed to provide and maintain a system of work, including a requirement to lock or tag the main switch or meter box where the technician needed to isolate power, and had not mandated the use of a volt stick. Furthermore, there was an absence of adequate information, training, instruction, and supervision concerning the isolation of power, the use of a lock or tag, the use of a volt stick, and the conduct of an adequate risk assessment.

The primary legal issues addressed by the court were whether the actions of BSA Limited were a substantial or significant cause of the death and, if so, the appropriate penalty to impose. The court found that the principles of causation were satisfied, and the acts of BSA Limited were indeed a substantial or significant cause of the death. The court adopted a common sense approach in applying these findings. The court also considered the objective seriousness of the offence, mitigating factors such as the early plea of guilty, and aggravating factors in determining the appropriate penalty.

BSA Limited was convicted on 29 September 2023. The court determined that the appropriate fine was $600,000, which was reduced by 10% due to the early plea of guilty, resulting in a fine of $540,000. The court ordered that 50% of the fine be paid to the prosecutor and reserved all questions of costs, directing the parties to follow a specified timeline for submitting written submissions and informing the court whether a hearing on costs was necessary.

Orders

Orders of the court

(1) BSA Limited was convicted on 29 September 2023.

(2) The appropriate fine is $600,000 but that will be reduced by 10% to reflect the early plea of guilty.

(3) Order BSA Limited to pay a fine of $540,000.

(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) Reserve all questions of costs.

(6) Direct that costs be resolved by the following steps:

(a) The defendant is to file and serve its written submissions on costs by 30 October 2023.

(b) The prosecutor is to file and serve its written submissions on costs by 13 November 2023.

(d) The parties are to inform my Associate by 27 November 2023 whether the issue of costs can be dealt with on the papers, or whether either party wishes to have a hearing date allocated for oral submissions in relation to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v BSA Limited (No. 3) [2023] NSWDC 417
Hearing dates:	29 September 2023
Date of orders:	16 October 2023
Decision date:	16 October 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) BSA Limited was convicted on 29 September 2023. (2) The appropriate fine is $600,000 but that will be reduced by 10% to reflect the early plea of guilty. (3) Order BSA Limited to pay a fine of $540,000. (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) Reserve all questions of costs. (6) Direct that costs be resolved by the following steps: (a) The defendant is to file and serve its written submissions on costs by 30 October 2023. (b) The prosecutor is to file and serve its written submissions on costs by 13 November 2023. (c) The defendant is to file and serve any written submissions in reply in relation to costs by 20 November 2023. (d) The parties are to inform my Associate by 27 November 2023 whether the issue of costs can be dealt with on the papers, or whether either party wishes to have a hearing date allocated for oral submissions in relation to costs.
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 to parts of the Summons – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements OTHER – worker installing satellite dish and associated cabling – fatal electric shock following contact with live wire and earth wire underneath the house – failure to provide and maintain system of work – requiring lock or tag on main switch or meter box where technician required to isolate power – requiring use of volt stick – failure to provide adequate information, training, instruction and supervision concerning isolation of power, use of a lock or tag, use of a volt stick and conduct of an adequate risk assessment CAUSATION – relevant principles – findings of fact – whether acts of the defendant were a substantial or significant cause of the death – common sense approach – application of such a finding
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Brzozowski v R [2023] NSWCCA 129 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Campbell v The Queen [1981] W.A.R. 286 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Facenfield v R