SafeWork NSW v Solveco Pty Ltd (No. 2) - [2022] NSWDC 331

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Solveco Pty Ltd (No. 2) [2022] NSWDC 331
Hearing dates: 9 August 2022
Date of orders: 12 August 2022
Decision date: 12 August 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Solveco Pty Ltd is convicted.
(2)   The appropriate fine is $240,000 but that will be reduced by 12.5% to reflect the plea of guilty.
(3)   Order Solveco Pty Ltd to pay a fine of $210,000.
(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 Solveco 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 – offender conducted a business or undertaking involving waste management, treatment of liquid waste and solvents and recycling of commercial waste – worker was operating a shredder to shred aerosol cans 20 metres away from a worker operating a pressure washer – puncturing and shredding aerosol cans released a cloud of flammable gas – spark from pressure washer created an explosion and fire – failure to require aerosol cans be punctured and degassed prior to shredding – failure to prohibit ignition sources around flammable gases and vapours – failure to implement and maintain safe system of work – failure to provide adequate instruction and training

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

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
SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312
SafeWork NSW v JA Investment Group Pty Ltd [2021] NSWDC 569
SafeWork NSW v JPS Car Wash Management Pty Ltd; SafeWork NSW v SRS Star Management Pty Ltd; SafeWork NSW v Sarjeet Sidhu [2021] NSWDC 148
SafeWork NSW v Omega International and Shetty [2016] NSWDC 11
SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441
SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298
Unity Pty Limited v SafeWork…

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: [2022] NSWDC 331
Decision Date: 12 August 2022

CaseChat Overview and Summary

SafeWork NSW sought to prosecute Solveco Pty Ltd for breaches of work health and safety laws, leading to the death of an employee. The case was heard in the Local Court of New South Wales, presided over by Judge Smith. The prosecution alleged that Solveco Pty Ltd had failed to ensure the safety of its employees, leading to a catastrophic incident where a worker was killed due to an explosion caused by flammable gases released from aerosol cans being shredded. The key legal issues for the court to determine were the culpability of Solveco Pty Ltd in failing to implement adequate safety measures and the appropriate penalty to impose considering the circumstances.

The court found that Solveco Pty Ltd had breached its duty under the work health and safety legislation by not requiring aerosol cans to be punctured and degassed before shredding, not prohibiting ignition sources around flammable gases, and failing to maintain a safe system of work. These breaches were deemed to have contributed to the tragic incident. The court considered various factors in determining the penalty, including the objective seriousness of the offence, the company's plea of guilty, and its capacity to pay. The court noted that the company had demonstrated a lack of adequate safety protocols, which significantly contributed to the incident's severity.

Upon considering the mitigating and aggravating factors, the court decided on a fine of $240,000, reduced by 12.5% to reflect the plea of guilty. Therefore, Solveco Pty Ltd was ordered to pay a fine of $210,000. Additionally, the court mandated that 50% of this fine be paid to the prosecutor, and Solveco Pty Ltd was also ordered to cover the prosecutor's costs. This decision underscores the importance of stringent adherence to work health and safety regulations and the severe consequences that can follow from their neglect.

Orders

Orders of the court

(1) Solveco Pty Ltd is convicted.

(2) The appropriate fine is $240,000 but that will be reduced by 12.5% to reflect the plea of guilty.

(3) Order Solveco Pty Ltd to pay a fine of $210,000.

(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 Solveco 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 Solveco Pty Ltd (No. 2) [2022] NSWDC 331
Hearing dates:	9 August 2022
Date of orders:	12 August 2022
Decision date:	12 August 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Solveco Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 12.5% to reflect the plea of guilty. (3) Order Solveco Pty Ltd to pay a fine of $210,000. (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 Solveco 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 – offender conducted a business or undertaking involving waste management, treatment of liquid waste and solvents and recycling of commercial waste – worker was operating a shredder to shred aerosol cans 20 metres away from a worker operating a pressure washer – puncturing and shredding aerosol cans released a cloud of flammable gas – spark from pressure washer created an explosion and fire – failure to require aerosol cans be punctured and degassed prior to shredding – failure to prohibit ignition sources around flammable gases and vapours – failure to implement and maintain safe system of work – failure to provide adequate instruction and training
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
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 SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312 SafeWork NSW v JA Investment Group Pty Ltd [2021] NSWDC 569 SafeWork NSW v JPS Car Wash Management Pty Ltd; SafeWork NSW v SRS Star Management Pty Ltd; SafeWork NSW v Sarjeet Sidhu [2021] NSWDC 148 SafeWork NSW v Omega International and Shetty [2016] NSWDC 11 SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441 SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298 Unity Pty Limited v SafeWork…