SafeWork NSW v Komatsu Pty Ltd

[2020] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314

Hearing dates:

12 May 2020

Date of orders:

19 June 2020

Decision date:

19 June 2020

Jurisdiction:

Criminal

Before:

Strathdee, DCJ

Decision:

(1) The defendant is convicted.

 

(2) The appropriate fine for the defendant would be $500,000.00 and that will be reduced by 25% to reflect a plea of guilty.

 

(3) I accordingly order the defendant to pay a fine of $375,000.00.

 

(4) 50% of the fine imposed is to be paid to the prosecutor.

 (5)   The defendant is to pay the prosecutor’s costs agreed in the sum of $40,000.00.

Catchwords:

CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury
SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition
COSTS – prosecution costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
Markarian v The Queen [2005] NSWIRComm 25
Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
Orbit Drilling v The Queen [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v Miria [2009] NSWCCA 68
SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
WorkCover Authority (NSW) v Profab industries Pty Ltd (2000) 49 NSWLR 700

Texts Cited:

Australian Standard 2359: Powered Industrial Trucks (2013)
Operation and Maintenance Manual
SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’
SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011)
SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014)
WARN Industrial Hoists Installation and Operator’s Guide
WorkCover Safety Alert ‘Working with or around Mobile Plant’

Category:

Sentence

Parties:

SafeWork New South Wales (Prosecutor)
Komatsu Australia Pty Ltd (Defendant)

Representation:

Counsel:
Mr N Read appeared for the Prosecutor
Ms P Lowson appeared for the Defendant
Solicitors:
SafeWork NSW Legal Services (Prosecutor)
Aaron Dearden, Hall & Wilcox (Defendant)

File Number(s):

2018/00277275

Publication restriction:

None

Judgment

1. On 2 March 2020, Komatsu Australia Pty Ltd (‘the defendant’) pleaded guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) by failing to comply with the health and safety duty imposed upon it by section 19(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.

2. This offence carries the maximum penalty of $1,500,000.00.

3. The contravention arises from an incident on 6 February 2017 involving an employee of the defendant engaged as a Resident Field Service Technician.

4. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

BACKGROUND

5. The defendant is a registered corporation (ACN 143 476 626) operating in the sales and product support of new and used earthmoving equipment and the resale, hire and rental of earthmoving equipment in Australia, New Zealand and New Caledonia.

6. The defendant supplied earthmoving equipment, parts and post-sale maintenance services to Veolia Environmental Services Pty Ltd (‘Veolia’). Veolia operated the Woodlawn Bioreactor and Bio Energy facility at 619 Collector Road, Tarago NSW 2580 (‘the workplace’). The defendant supplied Veolia with approximately six items of earthmoving equipment for use at the workplace and undertook scheduled and corrective maintenance on these items of plant.

THE BULLDOZER

7. In November 2015, the defendant received an order from Veolia for the supply of a D375A-6 Bulldozer (serial number 60268, Product Identification Number: KMT0D113JO2060268) (‘the bulldozer’). The bulldozer was fitted with a belly plate that protected mechanical components from the build-up of waste in the engine bay and also allowed access to larger components when required. The belly plate was situated directly beneath the engine bay and was secured in place by six retaining bolts on each side. A hinge was factory fitted to the right-hand side of the belly plate so it could be raised and lowered at one side to allow access to the engine bay for service and maintenance. The belly plate weighed between 275 and 290 kilograms.

8. Prior to supplying the bulldozer to Veolia, the defendant installed an electric winch system to raise and lower the belly plate, which was a bespoke modification (‘the winch system’). As part of the winch system, the defendant procured a WARN Industrial Hoist (Model DC1200) (‘the hoist’) to fit the bulldozer. The hoist consisted of a motor, a rotating drum, gears and an electrical control system. The purpose of the hoist was to raise and lower the belly plate to enable access to the engine for service and maintenance. The hoist was supplied to the defendant without a wire rope.

9. The WARN Data Sheet for the hoist (‘the Data Sheet’) provided the following information in respect of the wire rope specifications for use with the hoist:

‘Engineering Data

Recommended maximum wire rope diameter: 4.8mm.

Recommended minimum wire rope breaking strength: 1905 kgf.’

10. The defendant sourced a wire rope for the hoist from HSE Winches (‘the wire rope’). The wire rope was a 6mm diameter, 6 strand (each with 19 wires) general purpose wire rope. The minimum breaking force of the wire rope was 1760kgf. The wire rope was fitted to the hoist, though it did not meet the hoist manufacturer’s recommended maximum rope diameter or minimum wire rope breaking strength as specified in the Data Sheet.

11. The WARN Industrial Hoists Installation and Operator’s Guide (‘the Operator’s Guide’) provided the following information:

‘General Safety Precautions

! WARNING

FALLING OR CRUSHING HAZARD

Failure to observe the instructions could lead to severe injury or death

•   Never use hoist to lift or move persons

•   Always use the size of rope specified in the product data sheet

…

! CAUTION

Failure to observe these instructions could lead to moderate injury and property damage

…

•   Always use rope specified on the product data sheet.

…

•   Always inspect and carefully rewind rope after each use. Cuts, kinks or freight areas produce the tensile strength of the rope. Replace rope if damaged.’ (sic)

12. The Data Sheet also recommended spooling out and checking the rope before each use.

13. The defendant undertook a technical risk assessment for the winch system. The technical risk assessment identified the following risks:

1. A risk of failure of the winch bracket (assessed as a possible risk); and

2. A risk of the belly plate weight exceeding the winch capacity (assessed as an unlikely risk).

14. The control measures for the identified risks were to provide manual calculations and a finite element analysis to prove the design (to be done after purchase order) and to assess the actual belly plate weight before the design. The technical risk assessment did not identify the risk of the wire rope failing and causing the belly plate to fall.

15. On or around 3 March 2016, the defendant installed the winch system on the bulldozer. The hoist was mounted on the front right-hand lower corner of the chassis directly under the engine oil sump. The wire rope was connected to a lifting eye welded to the belly plate and located approximately 400mm from the opposite side to the hinge of the belly plate.

16. The winch system was intended to be used to raise and lower the hinged belly plate. The winch system could not be used until the retaining bolts affixing the belly plate to the bulldozer had been removed. Once the retaining bolts were removed, the weight of the belly plate was suspended by the wire rope and it was able to be lowered and raised.

17. On or about 11 March 2016, the bulldozer was delivered to Veolia. The bulldozer was used for landfill management at the workplace.

THE WORK

18. The defendant employed Christopher Basedow (‘Mr Basedow’) as a Resident Field Service Technician. Mr Basedow commenced working for the defendant in September 2015. Mr Basedow had approximately 12 years’ experience working as a plant mechanic and held a Certificate III in Automotive (Heavy Vehicle Mechanical) (Agricultural).

19. On 2 February 2017, Mr Basedow attended the workplace to conduct a 500-hour service on the bulldozer. This service did not require the opening of the belly plate.

20. Whilst Mr Basedow was at the workplace, Veolia requested that the cooling components of the bulldozer be removed so that they could be cleaned. Mr Basedow sought approval from his supervisor, Shaun Collins, to carry out the work. Approval was given to carry out the work on 3 February 2017. The work was performed over a number of days.

21. On 3 February 2017, Mr Basedow attended the workplace and commenced removing and cleaning the cooling system which was situated in the engine bay of the bulldozer. This was the first time that Mr Basedow had undertaken this task on a bulldozer supplied by the defendant. The task required Mr Basedow to:

1. Remove the retaining bolts from the belly plate;

2. Lower the belly plate to the ground;

3. Remove and clean the cooling system;

4. Reinstall the cooling system;

5. Raise the belly plate; and then

6. Reinstall the retaining bolts to the belly plate.

22. The task required Mr Basedow to work underneath or in very close proximity to the belly plate whilst it was suspended by the winch system, particularly when removing or reinstalling the retaining bolts to the belly plate, steps (a) and (f) above.

23. On 3 or 4 February, when he commenced work on the bulldozer, Mr Basedow was not aware of the winch system, and instead used a ‘Cumalong’ chain system to hold the weight of the belly plate while he removed the retaining bolts.

24. Mr Basedow was informed by Matt Sherwood, Komatsu Field Service Technician, (‘Mr Sherwood’) that there was a winch system installed in the bulldozer and he demonstrated how it could be used to raise and lower the belly plate, though Mr Basedow did not receive any information, instruction or training from the defendant specific to the use and operation of the winch system.

25. When he was made aware of the winch system, Mr Basedow removed the Cumalong chain device and used the winch system to lower the belly plate to the ground. Mr Basedow assumed that the installed winch system was a safe mechanical device which would support the load of the belly plate.

INFORMATION, INSTRUCTION AND TRAINING PRIOR TO THE INCIDENT

26. Mr Basedow had not previously undertaken the task of raising and lowering the belly plate on a bulldozer provided by the defendant, though he had performed the task on a Caterpillar bulldozer prior to his employment with the defendant. Mr Basedow had not used an internal winch system to raise or lower a belly plate prior to the incident.

27. Mr Basedow was not aware that the winch system was installed on the bulldozer until the day prior to the incident and after he commenced the work. Mr Sherwood informed Mr Basedow that the hoist was installed on the bulldozer. Mr Sherwood said that his usual practise for removing a belly plate was to secure the belly plate by a crane with Working Load Limit (‘WLL’) Rated slings or chains, remove the back bolts, and then remove the front two bolts so as to not be working under a suspended load. The belly plate would then be lowered by the crane. To replace the belly plate, he would lift the belly plate with the crane, install the front two bolts (hinged side first) and then install the remaining bolts. Mr Sherwood indicated that a jack or Cumalong device could be used instead of a crane. Mr Sherwood said he felt safe to fit the remaining bolts once the front two bolts were secured and a lifting aid was in place, but a secondary aid such as cribbing or stands could also be fitted.

28. Prior to using the winch system, Mr Basedow reviewed the Operations and Maintenance Manual (‘the Operations Manual’) for the bulldozer but there was no information relating to use of the winch system. The defendant did not provide any information, instruction or training to Mr Basedow specific to the use and operation of the winch system.

29. Prior to the incident a ‘TAKE 5’ job safety evaluation for the task of radiator install was completed by either Mr Sherwood or Mr Basedow. The TAKE 5 identified the risk of a suspended load, however it did not specify any control measures.

30. Mr Basedow was not provided with the Operator’s Guide, or the information contained in it, prior to undertaking the task.

PRE-USE INSPECTION OF THE WIRE ROPE

31. Mr Basedow was not instructed to and did not undertake an inspection of the wire rope prior to operating the winch system.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

32. Prior to the incident, the defendant did not develop, implement and enforce a safe work procedure or a safe work method statement (‘SWMS’) for the task of raising and lowering the belly plate on a bulldozer fitted with a winch system which:

Identified the risk of being struck and/or crushed by the belly plate in the event of failure of the winch system;

Required that an inspection of the wire rope on the winch system for damage was undertaken in accordance with the Operator’s Guide and specified that if the rope was damaged no work was to be undertaken until it was replaced;

Specified that a secondary means of support for the belly plate, such as blocks, hydraulic jacks or a Cumalong device, was to be used to support the belly plate in the event of failure of the winch system, and in particular during the task of removing or reinstalling the retaining bolts; and

Prohibited workers from moving under or close proximity to a suspended belly plate unless a secondary means of support had been installed.

33. The defendant did not provide training, information and instruction to workers, and in particular Mr Basedow, in relation to a safe work method for the task of raising and lowering the belly plate on a bulldozer fitted with a winch system.

34. The defendant did not ensure that the rope on the hoist of the winch system was installed in accordance with the manufacturer’s specifications and in particular that the diameter of the wire rope did not exceed 4.8mm and the minimum breaking strength of the rope was 1905kgf.

35. The defendant used the following devices to raise and lower the belly plate on bulldozers that were not fitted with a hoist:

WLL Rated overhead crane used in the workshop;

WLL Rated vehicle mounted crane used during field services;

WLL Rated trolley hoist used to raise and lower belly plates;

WLL Rated slings used to raise, lower and restrain the belly plate;

WLL Rated manual pulley (Cumalong) chain set used to raise and lower the belly plate;

WLL Rated shackles used to attach the sling or chain set to the belly plate lift/lower point.

36. The defendant had a SWMS in place for the task of ‘Whole of Equipment Servicing’ (‘the servicing SWMS’). The servicing SWMS applied to several different items of plant, including a bulldozer, excavator and an articulated dump truck (machine models: D375-5, D375-6, HB2015-1, HM300-2).

37. The servicing SWMS did not address risks associated with the tasks of raising and lowering the belly plate (either by winch system or any other device) and the defendant did not have a safe work procedure or SWMS in relation to these tasks.

LEGISLATION AND GUIDANCE MATERIAL

OPERATIONS AND MAINTENANCE MANUAL

38. The Operations Manual for the bulldozer provided details of the operation and methods of inspection and maintenance for the bulldozer in order to use it safely.

39. The Operations Manual provided as follows:

‘PRECAUTIONS WHEN WORKING UNDER MACHINE OR WORK EQUIPMENT

•   If it is necessary to raise the work equipment or the machine and then go under it to perform inspection or maintenance, support the work equipment and machine securely with blocks and stands strong enough to support the weight of the work equipment and machine.

If the work equipment and machine are not supported, there is a hazard that they may come down and that this may lead to serious personal injury or death.’

SHOP MANUAL

40. The Shop Manual for the bulldozer provided the following general safety information:

‘Forward and general information

Safety notice

…

Precautions during work

…

5) When raising a heavy component (heavier than 25 kilograms), use a hoist or crane. Before starting work, check that the slings (wire ropes, chains and hooks) are free from damage. Always use slings which have ample capacity and install them to proper places. Operate the hoist or crane slowly to prevent the component from hitting any other part. Do not work with any part still raised by the hoist or crane.’

41. The Shop Manual also provided the following instructions in relation to the belly plate (referred to as an ‘undercover’):

‘General information on disassembly and assembly

Removal and installation of engine assembly

…

2. Using sling [1], gradually open the undercover of the engine and power train

…

Removal and installation of damper assembly

…

5. Open undercover (7) slowly using lifting tools [1]

…

Removal and installation of power train unit assembly

…

6. Using sling [1], open undercover (1) gradually

…

Removal and installation of work equipment pump assembly

…

7. Sling undercover (1) and lower it by using lifting tool [1]

* Because one side of the undercover is hinged, remove bolts on the other side to sling the undercover.’

42. The instructions in the Shop Manual provided safety related precautions and hazard warnings, but did not identify the risk of being struck and/or crushed by the belly plate when it was raised or lowered, nor did they contain any specific hazard or warning that persons were not to place their bodies under the belly plate at any time unless the belly plate was supported by a secondary means of support.

43. The Shop Manual did not set out a safe method of work for raising or lowering the belly plate fitted with a winch. It did not identify the risk of the winch system failing or specify that a secondary means of support was required when undertaking the task of removing and reinstalling the retaining bolts.

GOLDEN RULES

44. Prior to the incident, the defendant had implemented a Work Health and Safety Management Plan that included ‘Komatsu HSE Golden Rules’. Golden Rule No. 6 provided that workers must ‘Never work within the FALL ZONE of a suspended load’

45. Mr Basedow had been trained in and was aware of the Golden Rules. Mr Basedow assumed the winch system would adequately support the belly plate so as to eliminate risk of any potential fall zone.

WARN INDUSTRIAL HOISTS OPERATOR’S GUIDE

46. The Operator’s Guide provides the following warnings and safe operating guidelines:

‘! CAUTION

…

Failure to observe these instructions could lead to minor and moderate injury.

General Safety

Always know your hoist. Take time to fully read the Installation and Operations Guide in order to understand you hoist and its operation.

Safe Operating Guidelines

! WARNING

Failure to observe these instructions could lead to property damage, severe injury or death.

Always watch for hazards from the cable, drum pinch points, falling loads, and rope or rigging under tension.

Avoid the following:

NEVER:

Never stand close to hoist when operating. If rope breaks it can fly back with tremendous force.

Do the following:

ALWAYS:

Always, prior to a lift, inspect mounting structure, hoist, slings and/or other accessories for signs of damage. Replace damages components prior to a lift.

Always stand clear of the rope and load during hoist operation.

Always make sure that other hoist operators understand the potential hazards and have been trained in the proper use of the hoist.’

47. The Operator’s Guide also states:

‘! CAUTION

…

Hoisting Safety:

Always inspect rope, hook and slings before operating hoist. Damaged components must be replaced before operation. Protect parts from damage.

…

Safe Operating Guidelines

Do the following:

ALWAYS:

Always, prior to a lift, inspect mounting structure, hoist, slings and/or other accessories [for] signs of damage. Replace damaged components prior to a lift.

And

Periodic Preventative Maintenance

Check rope for visible damage every time hoist is operated. Examples of damage are: cuts, knots, mashed or frayed portions and broken strands. Replace rope Immediately if damaged. Failure to replace a damaged rope could result in breakage

Preventative Maintenance Schedule

Spool out and check rope before each use’

THE INCIDENT

48. On 6 February 2017, Mr Basedow attended the premises to reinstall the cooling system of the bulldozer. After he had reinstalled the cooling system, Mr Basedow stood in front of the bulldozer and used a remote control to operate the winch system to raise the belly plate of the bulldozer. When the belly plate was attached to the winch system and the retaining bolts removed, it was a suspended load.

49. Once the belly plate was raised and in position, Mr Basedow moved under the belly plate to reinstall the retaining bolts. At this point, Mr Basedow heard a loud bang.

50. The wire rope on the winch system snapped and the belly plate dropped to the ground hitting Mr Basedow’s hard hat and impacting the right side of his head and face.

51. Mr Basedow sustained multiple injuries as a result of the incident, including traumatic brain injury, multiple skull, facial and left eye socket fractures, loss of hearing in his right ear, cognitive impairment and memory problems, dental, neck and back injuries, and post-traumatic stress disorder, depression and anxiety.

52. Mr Basedow is currently certified unfit for employment. His future return to work prognosis is unknown.

POST-INCIDENT INVESTIGATIONS

53. On 6 February 2017, SafeWork NSW issued an Improvement Notice to Veolia which required Veolia to have the bulldozer inspected by an independent, competent person to determine the cause of the mechanical failure of the hoist. Veolia engaged Marloc Engineering Pty Ltd and Mario Larocca, Mechanical Engineer, (‘Mr Larocca’) conducted an inspection of the bulldozer. Mr Larocca made the following observations:

1. The wire rope was the incorrect diameter: 6mm – 6 x 19 wire rope was used on the hoist instead of 4.8mm wire rope;

2. The rope was poorly wound onto the winch drum;

3. The wire rope was crossed and damaged; and

4. The wire rope failed approximately 200mm from the fitting to the belly plate where the rope first bends onto the winch drum.

54. Mr Larocca found that the larger (incorrectly sized) wire rope had not wound onto the drum correctly and opined that the use of a non-recommended wire had resulted in poor spooling and increased the risk of damage and ultimately contributed to the failure of the wire rope on the day of the incident.

55. The defendant also undertook an investigation into the incident and observed that the wire rope was overlapping, not spooled evenly, and damaged in various locations. The defendant concluded that the direct causes of the incident were the failure of the winch rope and that Mr Basedow was working under a suspended load contrary to a ‘Golden Rule’ (see paragraph 44 above). The defendant also observed that the wire rope had a greater diameter than that recommended for the hoist and this may have contributed to its failure. Members of the defendant’s engineering team reviewed the report of Mr Larocca and, in principle, agreed with the findings in the report.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

56. The defendant inspected the hoist and investigated the incident. The defendant identified and inspected eight other bulldozers across Australia that had a similar winch system fitted and concluded that in each case removal of the hoist was the best course of action. The defendant also removed the option to purchase an internal winch system from all Bulldozer product manuals. In addition:

1. The defendant published and disseminated a Safety Alert to all its employees regarding the belly plate hoist failure on 7 February 2017 and ensured that the incident with Mr Basedow was discussed at all pre-start meetings.

2. Regional reminders were sent to all branch offices in Australia, New Zealand and New Caledonia reminding workers to assess the use of a tracking elevated device when working with large machinery.

3. The HSE Golden Rules are required be completed by all employees annually.

4. The defendant re-designed the TAKE 5 system in various ways, including an online component that requires the person completing the TAKE 5 to positively address whether a suspended load is involved, and if so, to complete risk management strategies before being able to finalise the TAKE 5.

CONSIDERATIONS

57. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing.

THE NATURE OF THE DUTY

58. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The notion of reasonable practicability is informed by the considerations found in section 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

59. The duty is one of strict liability: section 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.

60. The defendant’s duty was to exercise due diligence to ensure that the business complied with its duty under section 19(1) of the Act. Its duty was to take “reasonable steps” to ensure the business had, and implemented, processes for complying with its duty: section 27(5) of the Act. The defendant failed to take reasonable steps to identify and manage the risk.

MAXIMUM PENALTY

61. The maximum penalty for a corporation in respect of an offence under section 32 of the WHS Act is $1.5 million. The level of the fine prescribed evidences a legislative intention that the offence is to be treated seriously: Markarian v The Queen [2005] NSWIRComm 25 at [30] and [31].

SENTENCING PRINCIPLES

62. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: section 3A of the Act.

63. The court is to be guided by the provisions of the Sentencing Act which include:

1. (a)    Section 3A which sets out the purpose of sentencing;

2. (b)    Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. (c)    Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

64. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way:

‘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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. 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.’

OBJECTIVE SERIOUSNESS OF THE OFFENCE

65. The duties of the defendant require that it ensure that the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

66. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors.

67. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.

68. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab industries Pty Ltd (2000) 49 NSWLR 700 at 714.

69. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen [2012] VSCA 82 at [62].

70. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.

71. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows:

‘[34] 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 to guard against 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.

…..

[42] 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 pressure event of the force 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.’

72. Further, at [53], his Honour said that the seriousness of the risk of injury cannot be discounted by reference to the unlikelihood of injury occurring. The conduct to be assessed is the failure to respond to a risk of injury. Conduct will be considered more serious, the more serious the potential injuries, whether or not they are likely to materialise.

73. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, will point to a more serious offence.

74. The relevant factors in determining the defendant’s culpability are:

1. The duty the defendant had was to put in place systems or controls to either eliminate or minimise the risk, so far as was reasonably practicable.

2. The risk of a worker suffering serious injury or death as a result of being struck or crushed by the belly plate of a bulldozer whilst undertaking service and maintenance was an obvious and known risk. Prior to and at the time of the incident, the defendant had utilised an number of different devices to raise and lower the belly plates on its bulldozers.

3. The risk assessment for the winch system had identified the risk of failure of the winch bracket. However it failed to identify the risk of the wire rope snapping which allowed the belly plate to fall.

4. As this was the first time that Mr Basedow had undertaken this specific task on a Komatsu bulldozer, he ought to have been trained or instructed as to the safe manner in which to perform the task. He was provided with no information or instruction, which had disastrous consequences.

5. In circumstances where there was a safe work procedure for the task required, such as an additional means of support and the use of the winch, the likelihood of the risk coming home was high. The process in place didn’t work such that Mr Basedow, although indicted onto the workplace, had never used a winch to hold up the belly plate.

6. The defendant failed to ensure that the appropriate rope was attached to the winch in accordance with the manufacturer’s specifications. The subsequent inspection after the incident by a mechanical engineer raised the question as to whether the use of an incorrectly sized wire rope had contributed to the failure of the rope.

7. There was no inspection by the defendant of the wire rope in the winch before use. Had this simple step occurred, the operator may have observed if there was any damage to the rope before it was utilised. The inspection subsequent to the incident revealed that the rope failed in part as it had become tangled and damaged such that it could not suspend the load.

8. The set of “Golden Rules” that Komatsu had created did not address how the task which Mr Basedow was required to do could be done without him placing himself underneath a suspended load, as it prohibited any work under a suspended load. Thus, the system that was in place failed.

9. The gravity of the risk was extreme and obvious. To have a belly plate weighing between 275 and 290 kg fall on anyone was obviously likely to have catastrophic consequences. Unfortunately the risk did come home and Mr Basedow was very badly injured.

75. The following safe work measures available to the defendant as set out in the Agreed Facts were not burdensome or inconvenient:

1. The implementation of a safe work procedure for bulldozers fitted with the winch system and providing information, instruction and training to workers in the procedure did not involve significant, if any, cost to the defendant;

2. The implementation of a practice of using a secondary means of support to restrain the belly plate was cost-free. At the time of the incident, and in particular immediately before the incident occurred there was the Cumalong device which could have been used in conjunction with the crane affixed to the service truck to provide a secondary means of support for the load.

76. The injuries suffered by Mr Basedow as a consequence of the defendant’s failures include a traumatic brain injury; multiple skull, facial and left eye socket fractures; loss of hearing in his left ear; cognitive impairment and memory problems; dental, neck and back injuries and post-traumatic stress disorder, depression and anxiety. The impact on Mr Basedow’s life has been extreme.

77. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].

78. The maximum penalty for this offence is a fine of $1,500,000.00.

79. The prosecutor submitted that the offence falls at least in the middle of the mid-range of objective seriousness of the matters coming before this court.

80. The defendant submits that the offence falls within the low range of objective seriousness. In support of this submission, they submit that there were a number of components that gave rise to the risk on 6 February 2017.

81. I accept that firstly, the winch failed and secondly, that Mr Basedow was not trained in the procedure to secure the belly plate with two bolts before entering the space beneath the belly plate to secure the other four bolts. Thirdly, I accept that Mr Basedow did not comply with the Golden Rule not to go beneath a suspended load.

82. I also accept that the defendant accepts that it had a non-delegable duty to ensure the health and safety of its workers, and has apologised for the breach. Implicit in the plea is that the defendant also accepts that it did not train Mr Basedow in the correct procedure for the removal of the bolt to lower the belly plate, and did not incorporate the methods in any procedure or SWMS.

83. However, I also accept that the existence of the Golden Rules demonstrates that the defendant was cognisant of work health and safety in the workplace, and had a system in place that was intended to prevent the risk of a suspended load falling on a worker. Whilst in all the circumstances the system was insufficient to protect Mr Basedow, the defendant has recognised this failure by the entry of the plea. I accept that in assessing the seriousness of the risk, that there were steps that had been taken by the defendant that were intended to protect a worker from the specific risk associated with suspended loads.

84. Exhibit 1, the Affidavit of Colin John Shaw, Executive General Manager of the defendant, details the size and operations of the defendant, nationally and internationally. The defendant is part of a multi-national group of companies across six continents (‘the Komatsu Group’) which manufactures, supplies and services earth moving equipment. The defendant manages all relevant operations of the group across Australia, New Zealand and New Caledonia (Oceania). Mr Shaw also gave evidence before me, by audio visual link, and I accept him as a witness of truth.

85. The defendant’s operations support Australian construction contractors, quarries, mines, farmers and other users such as Veolia, including the manufacture, sale and maintenance of earth moving machines with occasional bespoke modifications.

86. Globally, the Komatsu Group employs over 59,600 employees. The defendant employs approximately 2,500 employees over Oceania and has a network of 38 branches. Within NSW it employs 499 people who support the business in sales, machine assembly, servicing and maintenance, design engineering, product specialists and technical support.

87. The defendant is clearly a large organisation, and must be compared with the size of other corporate entities and sole traders. Basten J made the following observations in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266:

‘[79] Apart from factors already considered, it is necessary to address any questions raised at the sentencing hearing as to capacity to pay. Such questions arise in two ways. 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 (NSW). The sentencing judge found that Hanna Plumbing and Unity each had “a reduced capacity to pay a fine”, but appears to have fixed the level of the fine primarily by reference to the culpability of the defendants.’

88. The defendant in my view is not entitled to any leniency on penalty that might otherwise be afforded to a small business who had breached its WHS obligations. The defendant can be easily distinguished from a sole trader or a ‘mum and dad’ operation upon whom a large fine may significantly impact the viability of the operation. This is not the case with this defendant, and I have not allowed any leniency on that basis.

88. I accept that the offence falls within the mid-range for the reasons highlighted above.

DETERRENCE

90. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in section 3A(b) of the Sentencing Act.

91. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388.

92. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.

93. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [200] NSWIRComm 71; (2000) 49 NSWLR 610 at which the Court (Wright, Walton and Kavanagh JJ) said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

‘[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

94. General deterrence must be a significant feature of the sentence imposed upon the defendant. Bulldozers and their use create a significant risk of injury to workers in a variety of industries, and the operation and conduct of operators of those bulldozers must be properly and appropriately assessed as to the risk of operation not only to the operator, but to those working around the vicinity, and appropriate action must be taken to deal with the assessed risks.

95. Similarly, general deterrence can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of bulldozers in an industrial context.

96. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

97. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.

98. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92, Walton J observed at [241]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.’

99. The defendant continues to operate the business with significant changes to address the issues of work health and safety. I note that the defendant has taken all bulldozers fitted with winch systems out of service. I believe there must be an element of specific deterrence given this is the second incident where someone was injured whilst performing maintenance on bulldozers, and unfortunately that gentleman died as a consequence of his injuries. I do however believe that the prospect of rehabilitation is reasonable.

PRIOR INCIDENTS

100. On 20 January 2015, a worker was killed in Western Australia when a belly plate of a bulldozer supplied by the defendant fell and crushed him (‘the WA incident’). A Western Australian mining contractor was prosecuted and pleaded guilty to an offence under Western Australian safety laws. The defendant was not approached, interviewed or prosecuted in relation to this incident that did not involve an internal winch system. In the WA incident, a ratchet lever hoist (or Cumalong device) had been used to support the weight of the belly plate whilst the retaining bolts were removed. There was no secondary support installed between the ground and the belly plate to manage the risk of failure of the hinge that had been modified by the contractor.

101. A Western Australian mining contractor was prosecuted for the WA incident and pleaded guilty to an offence under Western Australian safety laws.

102. I accept that the defendant is entitled to rely on its good record as a mitigating factor, and I have taken that into account in coming to my decision. But, it does to my mind, allow this court to come to the conclusion that this defendant ought to have been aware that there had been a death as a result of the belly plate on one of their bulldozers and to that extent this incident was foreseeable, which affects the relative seriousness of the offence: section 21A(1)(c) of the Sentencing Act.

MITIGATING FACTORS

103. What is required for a mitigating factor under section 21A(3)(e) is that the offender does not have any record of previous convictions or “any significant record of previous convictions”. It seems to me that to establish a mitigating factor the onus would be on the defendant. I note that the defendant has never been charged with any previous offences and that is an impressive record given the period of time the business has been in existence, and the number of employees the defendant has, and that the business involves supplying and servicing of heavy machinery.

104. I also accept that the entry of the early plea is an exemplar of the acceptance of the responsibility for the accident, and recognition of the defendant’s desire to improve its work practices. I have taken these matters into account in coming to my decision: section 21A(3)(e) and (i) of the Sentencing Act.

105. The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea: section 21A(3)(k) and 22D of the Sentencing Act.

106. Mr Shaw at paragraphs 35-37 and 57 of his affidavit has apologised for the incident and the breach of the Act, both personally and on behalf of the defendant, and I accept that as genuine.

107. In his affidavit and in his evidence before me, Mr Shaw has set out steps that the defendant has taken to assist Mr Basedow. I have been informed by the parties that since the incident, the defendant has continued to pay to Mr Basedow the Field Service Allowance (currently $500 per fortnight), so that Mr Basedow receives his workers compensation entitlements of 70% of his pre-injury salary (which excludes the Field Service Allowance) plus $500 per fortnight from Komatsu. The payment of the Field Service Allowance is voluntarily paid by Komatsu to supplement Mr Basedow’s workers compensation entitlements. I accept that this is a mitigating factor and have taken it in to consideration in coming to my decision: section 21A(3)(f) and (i) of the Sentencing Act.

108. At paragraphs 58-60 of Mr Shaw’s affidavit the involvement of the defendant in the community is explained and I accept that the defendant is a good corporate citizen and I have taken that into consideration: section 21A(3)(f) of the Sentencing Act.

109. The steps taken by the defendant after the incident are extensive and constructive. Since the incident the steps taken by the defendant has identified and inspected eight other Komatsu bulldozers across Australia that have a similar winch system fitted to raise and lower the belly plates. In each case the winch system was removed, from existing bulldozers, and made not available for the purchase of a new bulldozer. These steps effectively eliminate the risk happening again.

110. Similarly, they have taken significant steps with regard to training of staff and systems of work, induction and training.

111. I am satisfied that the defendant is unlikely to re-offend: section 21A(3)(g) of the Sentencing Act.

112. The defendant co-operated with the SafeWork investigation and co-operated with all statutory notices issued by SafeWork NSW, including two Prohibition Notices and six improvement notices: section 21A(3)(m) of the Sentencing Act.

AGGRAVATING FACTORS

113. The injuries sustained by Mr Basedow were significant, and he has not returned to work: section 21A(2)(g) of the Sentencing Act.

PENALTY

114. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the defendant would be $500,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. I accordingly order the defendant to pay a fine of $375,000.00.

4. 50% of the fine imposed is to be paid to the prosecutor.

5. The defendant is to pay the prosecutor’s costs agreed in the sum of $40,000.00.

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Decision last updated: 19 June 2020