SafeWork NSW v E G Knight & Sons Pty Ltd - [2019] NSWDC 336

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v E G Knight & Sons Pty Ltd [2019] NSWDC 336
Hearing dates: 26 June 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1) The defendant is convicted.
(2) The appropriate fine would be $100,000.00 but for the matters raised in paragraphs 66-82 of this judgment and that would be reduced by 25% to reflect a plea of guilty.
(3) I accordingly order the defendant to pay a fine of $5,000.00.
(4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.
(5) I order the defendant to pay the prosecutors costs agreed in the sum of $25,200.00.

Catchwords: OCCUPATIONAL HEALTH & SAFETY – plea of guilty – general principles – foreseeability – objective seriousness of the offence – safety management system – objective knowledge of defendant
CRIME – prosecution – work health & safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – plea of guilty – general and specific deterrence – unguarded farm machinery
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011 (NSW)
Cases Cited: Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay)
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100
Jahandideh v R [2014] NSWCCA 178
McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310
SafeWork NSW v Samuels [2019] NSWDC 111
SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211;
WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
E G Knight & Sons Pty Ltd (Defendant)
Representation:
Counsel:
Mr N D Read appeared for the Prosecutor
Mr C Magee appeared for the Defendant
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Anne Hazelton, North & Badgery Lawyers (Defendant)

File Number(s): 2018/265538
Publication restriction: None

Judgment

On 15 April 2019 E G Knight & Sons Pty Ltd (‘the defendant’), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (‘the Act’), by failing to comply with the health and safety duty imposed upon it by s19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.
This offence carries the maximum penalty of $1,500,000.00.
The offence was committed at “Boxwood”, 941 Yarrow Road, Mendooran in NSW on 9 May 2017. At that time and place there were workers working in the defendant’s business that were exposed to a risk to their health…

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: [2019] NSWDC 336
Decision Date: 19 July 2019

CaseChat Overview and Summary

In SafeWork NSW v E G Knight & Sons Pty Ltd, the dispute before the court involved a prosecution under occupational health and safety legislation. SafeWork NSW, the regulatory authority, brought the case against E G Knight & Sons Pty Ltd for an incident that occurred on their farm. The key issue was whether the defendant company had fulfilled its duty of care under the Occupational Health and Safety Act by ensuring the safety of its employees. The crux of the matter was the foreseeability of the risk and the objective seriousness of the company's failure to mitigate that risk, particularly in relation to unguarded farm machinery which led to a fatality.

The court had to determine whether the company had an adequate safety management system in place and whether it had objective knowledge of the risks associated with the unguarded machinery. The prosecution argued that the company was aware of the risks but failed to implement necessary safeguards. The defence, on the other hand, contended that the incident was an unforeseeable accident and that the company had taken reasonable steps to ensure safety. The court assessed the adequacy of the safety measures, the foreseeability of the risk, and the company's overall duty of care. It also considered the principle of general deterrence to ensure that the penalty imposed would serve as a warning to other businesses about the importance of occupational health and safety compliance.

After thorough deliberation, the court found that the company was indeed negligent in failing to safeguard the machinery, leading to the death of an employee. The court acknowledged the plea of guilty but noted the gravity of the breach and its potential to cause severe harm. The court determined that the appropriate fine would be $100,000.00 but, due to the mitigating factors such as the plea of guilty, it was reduced by 25%. Consequently, the company was ordered to pay a fine of $5,000.00. Additionally, 50% of this fine was directed to the prosecutor as per the Fines Act 1996, and the company was also ordered to pay the agreed costs of $25,200.00 to the prosecution.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine would be $100,000.00 but for the matters raised in paragraphs 66-82 of this judgment and that would be reduced by 25% to reflect a plea of guilty.

(3) I accordingly order the defendant to pay a fine of $5,000.00.

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

(5) I order the defendant to pay the prosecutors costs agreed in the sum of $25,200.00.

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 E G Knight & Sons Pty Ltd [2019] NSWDC 336
Hearing dates:	26 June 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine would be $100,000.00 but for the matters raised in paragraphs 66-82 of this judgment and that would be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $5,000.00. (4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5) I order the defendant to pay the prosecutors costs agreed in the sum of $25,200.00.
Catchwords:	OCCUPATIONAL HEALTH & SAFETY – plea of guilty – general principles – foreseeability – objective seriousness of the offence – safety management system – objective knowledge of defendant CRIME – prosecution – work health & safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – plea of guilty – general and specific deterrence – unguarded farm machinery
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) Environmental Protection Authority v Barnes [2006] NSWCCA 246 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100 Jahandideh v R [2014] NSWCCA 178 McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310 SafeWork NSW v Samuels [2019] NSWDC 111 SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211; WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) E G Knight & Sons Pty Ltd (Defendant)
Representation:	Counsel: Mr N D Read appeared for the Prosecutor Mr C Magee appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Anne Hazelton, North & Badgery Lawyers (Defendant)
File Number(s):	2018/265538
Publication restriction:	None