SafeWork NSW v Crawfords Freightlines Pty Ltd

[2021] NSWDC 442

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Crawfords Freightlines Pty Ltd [2021] NSWDC 442

Hearing dates:

23 August 2021

Date of orders:

27 August 2021

Decision date:

27 August 2021

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Crawfords Freightlines Pty Ltd is convicted.

(2)   The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Crawfords Freightlines Pty Ltd to pay a fine of $90,000.

(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 Crawfords Freightlines Pty Ltd to pay the prosecutor’s 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 – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – workers were loading aluminium billets into a shipping container – a load on the tines of a forklift truck shifted and fell onto a worker standing inside the container – lack of adequate supervision – training gaps – unsafe shipping container loading procedures

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, 19, 32

Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38

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:

SafeWork NSW, General Guide for Industrial Lift Trucks July 2014

SafeWork NSW, Toolbox Talk: Take Forking Safety Seriously Guide (November 2017)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Crawfords Freightlines Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
B Hodgkinson SC (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Gillis Delaney (Defendant)

File Number(s):

DC 2020/209178

Judgment

1. In the course of loading aluminium billets into a shipping container, a load on the tines of a forklift truck shifted and fell onto a worker, hitting him and pinning him against the shipping container wall.

2. Crawfords Freightlines Pty Ltd (“Crawfords”) 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 Eddie Asiata 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 paragraph 9 of the Summons is as follows:

“9.   The risk was the risk of workers, in particular Mr Asiata, suffering serious injury or death as a result of being struck by a heavy load of aluminium billets while being loaded by a forklift truck inside a confined space within a shipping container (‘the risk’).”

Reasonably Practicable Measures

5. Paragraph 10 of the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“10.   The defendant failed to ensure, as far as is reasonably practicable, the health and safety of workers, in particular Mr Asiata, 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 to health and safety of its workers:

a)   Developing and implementing a safe work procedure or safe work method statement for the placing of cardboard between aluminium billets within shipping containers whereby no more than one person at a time was inside any shipping containers in which a forklift was in operation; and/or

b)   Inducting and/or re-inducting workers including Mr Asiata in relation to the safe work procedure or safe work method statement described in (a) above when they commenced work in the Alloy Department; and/or

c)   Training and/or re-training workers including Mr Asiata in relation to the safe work procedure or safe work method statement described in (a) above when they commenced work in the Alloy Department; and/or

d)   Providing adequate supervision of workers including Mr Asiata when undertaking work involving the placement of carboard in between stacks of aluminium billets inside shipping containers when working within the Alloy Department; and/or

e)   Prohibiting workers including Mr Asiata from remaining within any shipping containers while a forklift truck was in operation inside the same container.”

Background

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

7. Crawfords was a corporation first registered in 1995 which conducted operations from Lot 12 Old Maitland Road, Sandgate NSW (“the site”).

8. Crawfords conducted a business or undertaking specialising in road freight transport. For many years it transported aluminium products in shipping containers destined for overseas customers. The products consisted of ingots and billets of aluminium. The products were strapped up and then loaded into shipping containers. Crawfords engaged forklift operators who carried out these aluminium packing operations at the site by manoeuvring the loads into the shipping containers using ramps while carrying the loads on forklift tines.

9. The sole director of Crawfords was Mr Peter Crawford.

10. Mr Eddie Asiata was first employed by Crawfords in March 2018. He held a licence to operate a forklift truck and was experienced in forklift truck operation.

11. From the time he commenced in March 2018 Mr Asiata was working in the “General Division” at the site and was doing work that involved unloading trucks and loading tankers. His duties did not involve the loading of aluminium product into shipping containers. However, during his time working in the general division, he had been involved in loading and unloading other non-aluminium products into and out of containers.

12. On commencement at the site in March 2018 Mr Asiata was inducted into procedures known as “SOP 01 Operation of a Forklift Truck” (SOP 01) and “SOP 04 Unloading and Package of Aluminium” (SOP 04).

13. SOP 01 required forklift drivers to implement an exclusion zone before commencing forklift operations that might involve work being carried out near other persons.

14. SOP 04 included the following:

“SAFETY NOTE: At NO stage of container loading operations are any personnel permitted to be inside of a container while it is being loaded, with the exception to disconnecting slings or strap.”

15. During his first six months Mr Asiata carried out duties that did not involve working in or near shipping containers to load or unload aluminium product.

16. On 10 September 2018 Mr Asiata was assigned to work in a different section at the site, the “Alloy Department”. He reported to Mr Reginald Carnley who was the Team Leader/Supervisor of the Alloy Department. Mr Carnley had worked for Crawfords for approximately six years.

The Incident

17. On 13 September 2018, under the direction of Mr Carnley, Mr Asiata was asked to load aluminium billets into a shipping container. Mr Asiata undertook this task alongside Mr Bryn Roberts and Mr Shane Tobin. Mr Asiata had no prior experience in doing this task.

18. The billets were placed in bundles secured with strapping tape ready to be placed in the shipping container using a forklift truck. Cardboard was then used to stop the aluminium billet edges rubbing together during transit. This was a single roll of cardboard placed vertically between two loads down the centre of the shipping container. It was rolled out along the length of the billet before another billet load was placed beside it.

19. Mr Tobin was using the forklift truck. He brought in one load of the short billets and placed it in the left-hand back corner of the shipping container. Mr Asiata rolled out the cardboard along the length of the load and then stood against the left-hand side of the shipping container holding the cardboard up, while Mr Tobin loaded the second billet load on the right-hand side of the shipping container. Mr Asiata and Mr Tobin continued this process for several loads.

20. In the course of carrying out this work, Mr Asiata was standing on the right-hand side of the shipping container when Mr Tobin entered the shipping container on the forklift truck. The load shifted on the tines falling to the right where Mr Asiata stood. Mr Asiata put out his right hand to stop the load from falling but the load fell, hitting him and pinning him against the shipping container wall. The billet load weighed 2.3 tonnes.

Injuries

21. Mr Asiata was transported by ambulance to John Hunter Hospital.

22. Mr Asiata underwent surgery on a fractured left femur on 13 September 2018 and on a fractured right wrist on 15 September 2018.

23. Mr Asiata was then admitted to Hunter Valley Private Hospital for two weeks. He underwent hydrotherapy and physiotherapy and was experiencing some psychological impacts due to the incident.

24. Mr Asiata was 30 years old at the time of the incident.

25. There was no victim impact statement. There was no more detail provided to the court about his injuries and problems.

Legislation and Guidance Materials

Work Health and Safety Regulation 2017

26. Crawfords was required, under cll 34-38 of the Work Health and Safety Regulation 2017 (“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 was not reasonably practicable to eliminate the risk, then minimise the risk so far as was 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 was reasonably practicable, a work environment that was without risks to health and safety.

SafeWork NSW General Guide for Industrial Lift Trucks

27. The SafeWork NSW General Guide for Industrial Lift Trucks (July 2014) provides information about managing health and safety risks for people who carry out activities involving industrial lift trucks.

Safety Guide for Forklift Operators

28. The SafeWork NSW brief guide Toolbox Talk: Take Forking Safety Seriously (November 2017) provides information on how to hold toolbox talks with workers about working safely with forklifts, and contains a guided toolbox talk to be conducted with workers.

Systems of Work Before the Incident

29. At the time of the incident Crawfords had SOP 01 and SOP 04 in place. However, SOP 01 and SOP 04 did not deal with the specific task of placing cardboard between the bundles of billets.

30. Mr Asiata and Mr Tobin held forklift High Risk Work Licences.

31. Crawfords had in place a Job Cycle Observation system to assess the adherence to their SOPs, which was undertaken by the compliance team, supervisors or leading hands. However there was no formal process of tracking the Job Cycle Observation process to ensure that it was being conducted by any compliance team member, supervisor or leading hand of Crawfords.

32. The supervisor (Mr Reg Carnley) was attending to other tasks in another part of the Alloy Department at the time of the incident. There was no other supervision to ensure that workers were not inside shipping containers packing cardboard between stacks of aluminium billets, at the same time as forklifts trucks were in operation inside the containers.

33. There was no specific prohibition against workers remaining inside a shipping container when placing cardboard between aluminium billets, while forklift trucks were also being operated inside the same container. However, there was a prohibition in place as set out in SOP 04 Item 6.6 which required no personnel to be inside a container while it was being loaded, with the exception of disconnecting slings or straps.

34. There was also a requirement under SOP 01 for forklift drivers to ensure that they implemented an exclusion zone prior to commencing forklift operations that might involve working near other persons.

Training and Supervision

35. All workers undertook mandatory training as part of their induction which included the SOPs that were relevant to their role. The workers were trained under a supervisor for a week or two concerning the performance of their role in accordance with the SOPs. The worker was then assessed by the Safety and Training Officer on the theory and practical aspects of the relevant SOPs.

36. Mr Asiata undertook training in SOP 01 and SOP 04 on 27 March 2018. SOP 04 was not relevant or applicable to the work he did when he first started.

37. Mr Asiata did not undertake any work within the scope of SOP 04 until the week commencing 10 September 2018, when he moved to the Alloy Department after having worked in the General Department for six months.

38. On beginning work in the Alloy Department, Mr Asiata was not re-inducted, re-trained or provided with any refresher training in relation to SOP 04, or trained generally in relation to loading and packing aluminium.

39. Mr Carnley had direct supervision of the employees in the Alloy Department. He provided instruction to these workers on the duties to perform on a day-to-day basis. However, Mr Carnley relied on other workers to train or instruct Mr Asiata as to the correct safe operating procedures to conduct the tasks.

Systems of Work Following the Incident

40. Following the incident, SafeWork NSW issued an Improvement Notice to Crawfords. In response to the Improvement Notice, Crawfords:

1. Changed the system of work so that the packing of the short billets into the shipping containers was performed by the forklift operator working alone (instead of two persons). That operator was required to position and tape the cardboard against the billets while the forklift was not in operation.

2. Amended SOP 04 so that the information, training and instruction provided to workers was suitable and adequate to enable the packing of the short billets into the shipping containers to be carried out safely.

3. Re-trained and assessed all of the current operators on the amended version of SOP 04.

4. Conducted toolbox talks in relation to the incident and safety procedures.

Evidence for the Defendant

41. Mr Peter Crawford swore an affidavit on 18 August 2021 (DX 1). Mr Crawford is the Managing Director of Crawfords. He has been an entrepreneur since a very young age. He started out growing vegetables and moved into transportation.

42. Crawfords provides an integrated freight transportation service to and from key eastern Australian sea ports and across a comprehensive land-based network. It operates six dedicated service hubs. The freight business involves the transportation of about 148,000 shipping containers each year. Crawfords employs 240 staff. It operates 134 trucks and 3 trains. At the time of the incident on 13 September 2018 Crawfords employed five full-time staff to deal with health, safety, induction, training and compliance. Crawfords also employed four full-time staff as supervisors.

43. In par 42 of his affidavit Mr Crawford accepts that Crawfords did not address the specific risk of prohibiting workers from remaining inside a shipping container while they were placing cardboard between aluminium billets and while forklift trucks were being operated inside the container.

44. In par 45 of his affidavit Mr Crawford expressed regret that Crawfords did not have in place a system to deal with this particular risk. He expressed regret that Crawfords did not have in place a specific statement concerning packing cardboard around aluminium billets while the forklift was in operation.

45. Immediately after the incident on 13 September 2018 Crawfords changed its system of work so that the packing of billets into shipping containers was to be performed by the forklift operator working alone. That operator was to pack the cardboard, while the forklift was not in operation. Toolbox talks were held to draw this new instruction to the attention of all workers. A safety alert in respect of the incident was issued. All employees were re-trained in relation to the amendments made to SOP 04.

46. Crawfords has significant involvement in the community. It provides annual sponsorships for country sporting clubs and a railway museum. It has supported drought relief and has raised money for cancer charities.

Consideration

47. 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

48. 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].

49. 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].

50. 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.”

51. 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].

52. 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.

53. 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.

54. 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.”

55. 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.”

56. 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.”

57. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of a worker standing in the vicinity of a forklift being struck by a falling load is an obvious and foreseeable risk. The relevant guidance material clearly stated the specific risk of workers being hit by a falling load.

2. The likelihood of the risk occurring was relatively high in the circumstances where:

1. existing procedures did not specifically address the task of placing cardboard between the bundles of billets that Mr Asiata was undertaking at the time of the incident;

2. Mr Asiata was not trained in a safe method of placing cardboard within the shipping.

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

4. The available guidance material set out control measures regarding working safely with forklifts.

5. There would have been no significant burden or cost in taking such measures to ensure safety. Crawfords promptly implemented improved systems and training after the incident.

6. Mr Asiata suffered serious injuries. It is very fortunate indeed that he was not killed when a 2.3 tonne load fell on him.

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. There was no evidence that this unsafe method had been used on any other occasion.

9. Crawfords did have in place a general prohibition on workers being inside shipping containers when forklifts were operating. Both Mr Asiata and the forklift driver were ticketed and had previously been trained in this general prohibition.

58. I find that the level of culpability of Crawfords is in the lower half of the mid range.

Deterrence

59. 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].

60. The penalty must reflect the need for specific deterrence. Crawfords is still conducting a business. Its operations involve freight transportation for the mining, manufacturing, dangerous goods and agricultural sectors. It employs 240 workers and operates 134 trucks and 3 trains. Given the scale of its operations, Crawfords has a good safety system and a good record, so specific deterrence is not a significant factor in reaching an appropriate sentence.

Aggravating Factors

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

Mitigating Factors

62. Crawfords does not have a significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. There is a conviction for a 2004 incident which occurred when Crawfords was operating in the completely different industry of vegetable growing.

63. Crawfords is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Crawfords has been in business for 26 years. It has been a good corporate citizen.

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

65. Crawfords 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.

66. Crawfords 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 Asiata was caused by its actions.

67. Crawfords 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 Crawfords a 25% discount for an early plea.

68. Crawfords 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

69. 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.

70. 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.”

71. There was no submission about capacity to pay, so this issue does not arise.

Costs

72. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

73. My orders are:

1. Crawfords Freightlines Pty Ltd is convicted.

2. The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Crawfords Freightlines Pty Ltd to pay a fine of $90,000.

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 Crawfords Freightlines Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 27 August 2021