SafeWork NSW v Plasser Australia Pty Ltd - [2021] NSWDC 441

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441
Hearing dates: 16 August 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Plasser Australia Pty Ltd is convicted.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order Plasser Australia Pty Ltd to pay a fine of $180,000.
(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 Plasser Australia 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 engaged in oxy-propane cutting of waste solvent drums – top joint of the drum failed and explosive release caused the detachment of the drum lid – failure to undertake a risk assessment on the risks associated with the “de-heading” of waste drums – inadequate safe work procedures – training gaps

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, 7, 19, 32

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
Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79
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:
Code of Conduct: Managing risks of hazardous chemicals in the workplace – July 2014

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Plasser Australia Pty Limited (Defendant)
Representation:
Counsel:
M Cahill (Prosecutor)
E James (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Gilchrist Connell (Defendant)

File Number(s): 2021/065575

Judgment

On 13 March 2019 untrained workers employed by Plasser Australia Pty Ltd (“Plasser”) were using oxy-propane cutting equipment to de-head a 200-litre waste solvent drum. An explosion occurred causing the lid of the drum to strike one of the workers in his right leg.
Plasser has pleaded guilty to an offence that as a person…

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: [2021] NSWDC 441
Decision Date: 27 August 2021

CaseChat Overview and Summary

SafeWork NSW initiated proceedings against Plasser Australia Pty Ltd in the Local Court of New South Wales, alleging breaches of work health and safety laws that resulted in significant risk to employees. The workers were involved in the oxy-propane cutting of waste solvent drums when a failure in the top joint of one of the drums caused an explosive release, detaching the lid. This incident highlighted the absence of a risk assessment for the "de-heading" of the waste drums and deficiencies in the safe work procedures and employee training.

The court had to determine the objective seriousness of the offences, considering the mitigating and aggravating factors, as well as the impact of the company's plea of guilty. The prosecution argued that the risk to the employees’ lives was severe, and the company's failure to conduct a risk assessment and implement proper procedures exacerbated the situation. The defence presented mitigating factors, including the company's cooperation and the absence of previous convictions.

The court found the breaches to be of significant objective seriousness due to the potential for death or serious injury. However, it reduced the penalty by 25% to reflect the company's guilty plea. The court ordered a fine of $180,000, with 50% to be paid to the prosecutor, and mandated that the company pay the prosecution's costs. The decision underscored the importance of risk assessments and proper safety procedures in preventing workplace accidents.

Orders

Orders of the court

(1) Plasser Australia Pty Ltd is convicted.

(2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order Plasser Australia Pty Ltd to pay a fine of $180,000.

(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 Plasser Australia Pty Ltd to pay the prosecutor’s 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 Plasser Australia Pty Ltd [2021] NSWDC 441
Hearing dates:	16 August 2021
Date of orders:	27 August 2021
Decision date:	27 August 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Plasser Australia Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Plasser Australia Pty Ltd to pay a fine of $180,000. (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 Plasser Australia 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 engaged in oxy-propane cutting of waste solvent drums – top joint of the drum failed and explosive release caused the detachment of the drum lid – failure to undertake a risk assessment on the risks associated with the “de-heading” of waste drums – inadequate safe work procedures – training gaps
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, 7, 19, 32
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 Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79 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:	Code of Conduct: Managing risks of hazardous chemicals in the workplace – July 2014
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Plasser Australia Pty Limited (Defendant)
Representation:	Counsel: M Cahill (Prosecutor) E James (Defendant) Solicitors: SafeWork NSW (Prosecutor) Gilchrist Connell (Defendant)
File Number(s):	2021/065575