SafeWork NSW v The Salvation Army (NSW) Property Trust

Case •

[2024] NSWDC 608

•

20 December 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v The Salvation Army (NSW) Property Trust [2024] NSWDC 608
Hearing dates: 28 November 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction:Criminal
Before: Strathdee DCJ
Decision:

(1)   The Salvation Army (New South Wales) Property Trust is convicted.

(2)   The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $300,000.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5)   The defendant is to pay the prosecutors costs agreed in the sum of $60,000 plus GST.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – COVID 19 Pandemic

COSTS – prosecutor’s costs

Legislation Cited:

Aged Care Act 1997 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), s122

The Salvation Army (New South Wales) Property Trust Act 1929 (NSW)

Work Health and Safety Act 2011 (NSW), ss 3, 19(2), 32

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:

Australian/New Zealand Standard ISO 10535:2011 Hoists for the Transfer of Disabled Persons – Requirements and Test Methods

SafeWork NSW Managing the Risk of Plant in the Workplace Code of Practice (August 2019)

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
The Salvation Army (New South Wales) Property Trust (Defendant)
Representation:

Counsel:
T Hammond (Prosecutor)
M Cahill (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw Lawyers (Defendant)
File Number(s): 2022/378498
Publication restriction: Nil

JUDGMENT

  1. On 27 February 2021 at 14 Trebartha Street, Bass Hill, NSW, The Salvation Army (New South Wales) Property Trust (TSA), being a person who had a health and safety duty to ensure under s 19(2) of the Work Health ad Safety Act 2011 (the WHS Act) to ensure, so as far as was reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the defendant’s business or undertaking, did fail to comply with that duty and thereby exposed other persons, namely residents of the Centre who required the use of a full hoist patient lifter, including Kenneth Redcliffe (Mr Redcliffe), to a risk of death or serious injury contrary to s 32 of the Act.

  2. The maximum penalty for the offence is $1,766,130.

Background

  1. On 27 February 2021, Kenneth Redcliffe, a resident at Weeroona Aged Care Centre (the Centre), was involved in an incident that resulted in him being taken to hospital where he died the following day. The incident occurred when Mr Redcliffe was being moved from a bed bath to a chair by two nursing assistants using a patient lifter, and part of the lifter came apart causing Mr Redcliffe to fall about a metre onto the floor.

  2. At the relevant time, the Centre was owned and run by The Trustee for The Salvation Army (New South Wales) Property Trust, a trust established under The Salvation Army (New South Wales) Property Trust Act 1929 (the TSA Act). Under the TSA Act, the trustees are established as a body corporate by the name of “The Salvation Army (New South Wales) Property Trust” holding various powers and privileges and “suffering all such other acts and things as bodies corporate may by law do or suffer”.

  3. TSA pleaded guilty to an Amended Summons on 9 July 2024.

  4. The prosecutor tendered the Prosecution Sentencing Tender Bundle which became exhibit A, and a Victim Impact statement which became exhibit B. TSA tendered an affidavit of Carmen Ter Rahe of 21 November 2024 which became exhibit 1.

The Incident

  1. Mr Redcliffe had been receiving palliative care at the Centre for many years after he suffered a brain injury and more recently started to develop dementia. He had mobility issues which meant he had to be assisted on and off his bed with the use of a hoist known as a patient lifter.

  2. At about 10.30am on 27 February 2021, two nursing assistants commenced preparations for bathing Mr Redcliffe. The nursing assistants sourced an Oxford Presence Patient Lifter (patient lifter), a sling and a bed bath to assist with moving and bathing Mr Redcliffe. The two nursing assistants lifted Mr Redcliffe from his bed and onto the bed bath with the assistance of a registered nurse. Mr Redcliffe was then moved into his bathroom and bathed by the two assistants.

  3. Mr Redcliffe was returned to his room in the bed bath. He was then placed back into the sling which was attached to the patient lifter. As he was lifted and suspended above the bed bath, one of the nursing assistants removed the bed bath and returned with a chair into which Mr Redcliffe would be seated. As Mr Redcliffe was suspended, and before he could be lowered onto the chair, the spreader bar detached from the lifter boom arm and Mr Redcliffe fell about a metre onto the floor of his room. The spreader bar fell on top of him.

  4. Despite being given apparently appropriate medical treatment and being transferred to hospital for emergency treatment, the following day, Mr Redcliffe died as a result of his injuries. The injuries included: “bilateral ischial tuberosity fractures with mild displacement and extension to the inferior pubic ramus on the left; laceration to nose; and an injury to abdomen from being struck by the spreader bar”.

  5. On 9 July 2024, TSA entered a plea of guilty to the charge in the Amended Summons thereby admitting to a Category 2 offence under the WHS Act, that the offender’s failure to comply with its health and safety duty imposed under s 19(2) of the WHS Act exposed residents, including Mr Redcliffe, to a risk of death or serious injury. That failure to comply with its respective duties is an offence under s 32 of the WHS Act.

  6. The particulars of the offence to which TSA has admitted responsibility are set out in the Annexure to the Amended Summons (AS). Further details of the offences are set out in the Agreed Statement of Facts (ASOF) (tab 1 of exhibit A)

The Duty

  1. TSA had a duty under s 19(2) of the WHS Act, to ensure, so far as is reasonably practicable, the health and safety of other persons, in particular residents of the Centre including Mr Redcliffe, were not put at risk from work carried out as part of the conduct of the defendant’s business or undertaking.

The Risk

  1. The risk was the risk of other persons, in particular residents of the Centre inclusive of Mr Redcliffe who were lifted, moved and/or weighed with a full hoist lifter, suffering serious injury or death, as a result of falling from a full hoist patient lifter.

Systems of Work in Place Prior to the Incident

  1. It is clear that this is not a case where the defendant took no steps to address its work health and safety obligations.

  2. I accept that on the evidence, prior to the Incident:

  1. At its aged care facilities, including the Centre, TSA had in place a patient-centric care system and practices in place that were designed around the needs and care of residents in a manner that was intended to allow aged residents including Mr Redcliffe, to live with agency and to age with dignity.

  2. In particular, Mr Redcliffe’s care was the subject of a detailed personalised care plan that was regularly reviewed and updated. [ASOF [77]].

  3. It is a matter of great regret and remorse to the officers of the TSA that the system failed Mr Redcliffe. This is made clear by the expression of remorse and contrition which has been made on behalf of the Territorial Commander and the Trustees and on her own behalf by Ms Ter Rahe. (See affidavit of Ms Ter Rahe dated 21 November 2024, pars 139-140).

  4. TSA had in place an extensive system of WH&S related committees and systems which enabled both its workers and its aged-care residents to consult in relation to workplace-related safety issues. Despite the extreme difficulties created by the COVID-19 pandemic, TSA took steps to maintain the operation of these systems throughout the COVID-19 pandemic period – both generally and at the Centre (affidavit of Ms Ter Rahe dated 21 November 2024, par 82; and Annexure G which is a schedule/timetable of committee meetings in 2021).

  5. TSA had in place written safe work methods and procedures, including written safe work procedures with respect to the use of patient lifters and slings; and patient transfers, including patient transfers from a bed to a trolley (affidavit of Ms Ter Rahe dated 21 November 2024, pars 85-88 and Annexures “H” and “I”).

  6. In this regard, whilst noting that it had written safe work methods in place, TSA acknowledges, specifically, that the safe work procedure in relation to the use of patient lifters was inadequate (affidavit of Ms Ter Rahe dated 21 November 2024, par 89).

  7. TSA had in place a compulsory, documented system of employee induction (affidavit of Ms Ter Rahe dated 21 November 2024, par 100a and Annexure “O”).

  8. TSA had in place, in addition to the compulsory induction system, a system of documented “on the job” worker-based “buddy” training (affidavit of Ms Ter Rahe dated 21 November 2024, par 100b and Annexure “P”).

  9. TSA also had in place systems of ongoing training, including both mandatory face-to-face training and online training with assessment.

  10. The training at the Centre included ongoing competency training in tasks such as the manual handling involved in patient transfers conducted with a “standing” patient lifter (affidavit of Ms Ter Rahe dated 21 November 2024, pars 100c and 100d).

  1. Significantly, the evidence demonstrates that TSA sought to maintain its work health and safety practices at the Centre throughout the pandemic period. This is reflected in the ongoing scheduling of WHS-related committee meetings and the conduct of competency update training and assessments, such as the training undertaken. (see Annexure Q to Ms Ter Rahe’s affidavit dated 21 November 2024).

Steps taken After the Incident

  1. As is noted in Ms Ter Rahe’s affidavit dated 21 November 2024 at par 116, immediately after the incident police officers from Bankstown Police Station seized the Oxford Presence Lifter, including the Keli Load Cell, that was involved in the incident.

  2. TSA arranged for S&A Mobility Pty Ltd to attend the Centre on 2 March 2021 where an inspection was conducted of all lifters at the Centre. (affidavit of Ms Ter Rahe dated 21 November 2024, par 117).

  3. Subsequently, TSA arranged for two other lifters at the Centre which were fitted with Keli Load Cells to be rectified; and for the Keli load cells to be destroyed by ActivTec (affidavit of Ms Ter Rahe dated 21 November 2024, pars 118-119).

  4. TSA conducted an extensive investigation and developed a detailed Corrective Action Report (the Report). A copy of the Report is annexed to Ms Ter Rahe’s affidavit dated 21 November 2024 as Annexure “NN”. I note that all 37 of the recommendations set out in the Report have been actioned.

  5. In summary, and I accept that since the incident, TSA has taken substantial additional steps to review and further improve relevant health and safety and its management of those systems. TSA has developed an extensive training program designed to ensure, as far as is reasonably practicable, that care staff and management staff across its aged care centres have the capacity to inspect and identify potential defects in patient lifters, and also to enable maintenance staff to carry out detailed monthly inspections on patient lifters.

Relevant Legislation and Guidance Materials

  1. The SafeWork NSW Managing the Risk of Plant in the Workplace Code of Practice (August 2019) (Code of Practice) is a practical guide to achieving the standards of health, safety and welfare required under the WHS Act and applies to anyone who has a duty of care in the circumstances described in the Code of Practice. The Code of Practice was available on the SafeWork NSW website at the time of the incident, and provides guidance on how to identify, control, and manage risks in the workplace. The court may have regard to Codes of Practice as evidence of what is known about a hazard or risk, risk assessment or risk control to which a code relates, and it can rely on a code in determining what is reasonably practicable in the circumstances to which a code relates. Codes can be used in sentencing to assist the court in determining the level of culpability of an offender by assessing the failures of an offender against commonly identified risks and safety measures published in the relevant material.

  2. Section 2.1 of the Code of Practice at p 13 provides that PCBUs must identify the hazards associated with plant in the workplace. This refers to hazards arising from the plant itself and, in relation to plant used to lift or suspend persons or things, states:

“The Person must ensure that the lifting and being lifted or suspending is carried out…with lifting attachments that are suitable for the load being lifted or suspended.”

  1. Section 2.1 of the Code of Practice also refers to Inspection of Plant and recommends a review of the manufacturer’s instruction for use, and consideration of the conditions of the plant, its maintenance history and whether it has been modified.

  2. Section 2.2 of the Code of Practice requires assessment of the risk and includes consideration of the potential impact of the hazard and how likely the hazard is the cause harm.

  3. Section 2.3 of the Code of Practice deals with controlling the risks. It refers to the specific example of using tag-out system to ensure plant is not used whilst being maintained or cleaned.

  4. Section 3 of the Code of Practice relates to Controlling Risks and at 3.6 refers to Maintenance, repair and cleaning of plant. It reminds the reader “…plant must be maintained and repaired according to the manufacturer’s specifications”.

  5. Specific control measures are covered in Section 4 of the Code of Practice, with Section 4.5 relating to isolation procedures for plant that should not be used owing to maintenance, etc.

  6. The Code of Practice emphasises the considerations that a person with a duty for work health and safety must have when assessing and controlling risks associated with use of plant.

  7. The Australian/New Zealand Standard ISO 10535:2011 Hoists for the Transfer of Disabled Persons – Requirements and Test Methods (the Australian Standard) referred to in the ASOF, provides further direction and assistance in how to safely use and maintain patient lifters.

  8. The manufacturer’s manual was available to TSA for use. It provides pictures of the properly functioning lifter and contains a section called “4. Safety Precautions”. Within this section, under a bold WARNING sign, it states:

“ALWAYS carry out the DAILY CHECK LIST (later in this manual) before using the lift”.

  1. In the Maintenance Schedule section, it reads:

“A schedule of DAILY tasks are detailed below. Daily checks and a six monthly service, inspection and test will ensure a lift is kept in optimum safe working condition. …

DAILY CHECK LIST: Joerns Healthcare strongly recommends the following checks be caried out on a daily basis and before using lift. …

MAKE sure the spreader bar is free to rotate and swing. Check the spreader bar is firmly attached to the boom.”

  1. The manual’s Maintenance Schedule also requires at the first Maintenance Check point:

“1. SPREADER BAR: Check the spreader bar for freedom of rotation and swing. Check for wear on the central pivot. Check for firm attachment to the boom.”

  1. And at 16 it states:

“16. FIXINGS: check all nuts, bolts, screws and fasteners for excessive wear and for tightness. Replace as required”.

  1. There is a section that refers to the LCD Display Screen, including the symbol indicating when a service is due.

  2. It is submitted by the Prosecutor that use of the Code of Practice and other material emphasises the foreseeability of the risk to persons being moved with a patient lifter, and the relatively simple control measures that could have been implemented to eliminate or minimise the risks. Recourse could have been had to these resources which are all in plain English and easily accessible.

Objective Seriousness of the Offence

  1. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…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 offending.”

  1. Subjective factors play a subsidiary role:  Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

  2. The objective seriousness of the risk of a person being exposed to the risk of injuries such as those suffered by Mr Redcliffe is very high. A fall from a lifter could quite easily result in serious injury or (as in this case) death to those falling, especially very elderly, frail persons.

  3. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks to residents and an assessment of measures to address such risks.

  4. 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 Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

  5. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

  6. 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 Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61.

  7. 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; [2000] NSWIRComm 142 at [31].

  1. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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 upon an assessment of all those factors.”

  1. His Honour further observed at [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, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

  1. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

  2. 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 at [17]-[18] (Latham J).

  3. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence:  WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

  4. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

  1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize:  Nash v Silver City Drilling at [34].

  2. The availability of steps to eliminate or minimise the risk:  Nash v Silver City Drilling at [34].

  3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious:  Nash v Silver City Drilling at [34] and [53].

  4. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

  5. Whether the risk was an obvious or clear one.

  6. The vulnerability of the workers exposed to the risk:  SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 at [55] (Russell SC DCJ).

  1. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of.  In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

COVID-19 Pandemic

  1. Since 2018 inspection of the patient lifters was performed by S&A Mobility Pty Ltd, and they had inspected the patient lifters on 15 November 2018 and 6 November 2019. TSA’s dealings with S&A Mobility Pty Ltd after the inspections, servicing and testing of the Centre’s hoists on 6 November 2019 needs to be considered in the context of the onset of the COVID-19 Pandemic and the effect that the onset of the pandemic had on the operation of aged care facilities across Australia – including the Centre.

  2. On 26 February 2021, the Australian Government Department of Health published statistics of COVID-19 outbreaks in Australian residential aged care facilities. These statistics indicated that:

  1. There had been 678 deaths from the COVID-19 infection in residential aged care facilities.

  2. 214 residential aged care facilities had experienced an outbreak of COVID-19.

  3. There had been 221 outbreaks of COVID-19 at residential aged care facilities.

  4. There had been a total of 2029 cases of COVID-19 in residents of residential aged care facilities, of which 1,351 made a recovery.

  5. There had been a total of 2,227 cases of COVID-19 in staff at residential aged care facilities, all of which made a recovery.

  6. On 24 March 2020, the NSW Minister for Health put in place restrictions on persons, including subcontracted service providers such as S&A Mobility Pty Ltd, entering into aged facilities in NSW, including the Centre.

  7. Commencing on 3 March 2020 and continuing to 7 May 2020, Baptist Care’s Dorothy Henderson Lodge in Macquarie Park, Sydney, was the first aged care home in Australia to have an outbreak of COVID-19. In total there were 21 confirmed cases, 17 residents and 5 staff. Six residents passed away.

  8. In NSW all non-essential businesses were closed down from 21 March 2020 and the first COVID-19 “Lockdown” commenced on 31 March 2020.

  9. In NSW, the easing of the first Lockdown restrictions in the general community commenced on 15 April 2020.

  10. As at 20 May 2020, there were 61 reported cases of Coronavirus (COVID-19) in NSW-based aged care centres with 27 reported deaths from infections in those facilities.

  11. Between 11 April 2020 and 15 June 2020, New March House, Kingswood, Sydney experienced an outbreak of COVID-19. In total there were 71 confirmed cases, 37 of those were residents and 34 were workers. 19 residents passed away.

  12. Prior to, and as at the date of the subject incident, there was no Rapid Antigen Testing ie RATs available for use in Australia.

  13. Prior to February 2021, there were no treatments or vaccines for COVID-19 that had been approved for use. The first dose of COVID-19 vaccine became available at the Centre and was administered to the residents of the Centre after the subject incident.

  1. I accept that commencing in March 2020 and continuing until after the subject incident, the management and resources of The Salvation Army Aged Care generally and the management and resources of the Centre were placed into the extraordinary circumstance of having to manage and conduct aged facilities in the midst of a pandemic for which the Australian Government, both State and Federal, and the Public Health Authorities were ill-prepared.

  2. I further accept that having regard to the extreme risk to all of the residents of the facility associated with the COVID-19 pandemic, in the period between March 2020 and the date of the subject incident, the management and staff of the Centre were required to direct their attention and resources to a very significant degree to the management of that risk whilst still maintaining the usual day to day operations of an aged care facility in circumstances which involved complete lockdowns, constant restrictions on entry to the facility, staff shortages, and a raft of other complications as outlined in Ms Ter Rahe’s affidavit dated 21 November 2024, pars 103-115.

  3. It is obvious that the pandemic had very significant effects on aged care facilities. It was unknown. It changed the way we lived, and implicitly must have made the role of keeping people in aged care homes incredibly difficult. I accept that the TSA staff were primarily keeping the residents and themselves safe from the pandemic and this would have occupied them for a significant period of each shift.

  4. Importantly I note that the defendant does not assert that the pandemic is an excuse for its failure, but an explanation.

Matters are Relevant to Determining the Culpability of the Defendant

  1. TSA acknowledge that the risk was to non-workers, in particular Mr Redcliffe.

  2. TSA failed to prevent the use of the hoist patient lifter with its modification having been approved or authorised by the manufacturer or without the modifications being inspected and certified by a competent person.

  3. TSA also failed to have its lifters maintained and inspected in line with the Australian Standard and have any damaged or parts identified and repaired.

  4. It is noted that the Centre used 11 patient lifters in February 2021 and 39 residents required the use of lifters. There was no person filling the maintenance supervisor position between February 2020 and February 2021 and the only maintenance employee during this period had no qualification relating to maintenance.

  5. In 2020, TSA required its aged care facilities to not enter into local contracts and this resulted in S&A Mobility Pty Ltd (the maintenance company that had serviced the lifters in 2018 and 2019) being told their services were no longer required. S&A Mobility Pty Ltd were not replaced until after the incident.

  6. I accept that in these circumstances, the level of foreseeability of an event occurring as happened on 27 February 2021 is high.

  7. TSA acknowledges that the risk was to non-workers, and in particular Mr Redcliffe. It further acknowledges that the risk of injury associated with a failure of the patient hoist was well known in the industry and specifically identified by the defendant in its safe work system.

  8. The acceptance of these matters is, I accept, is reflected in TSA’s acceptance of the ASOF which acknowledges:

  1. The TSA’s acceptance of its responsibility for breaching the duty imposed upon it by s 19(2) of the WHS Act.

  2. The injury, loss and damage sustained by Mr Redcliffe, and his passing, which flowed from the TSA’s failings.

  1. I am satisfied that for the purpose of sentencing, TSA is a large, diverse not-for-profit charitable organisation that applies any excess proceeds of the conduct of its business centres, such as Salvo Stores and its aged care operations, to the subsidisation of its charitable social mission and works.

  2. Both historically and at present, TSA operates across the State of NSW providing diverse ranges of support to the elderly – particularly the disadvantaged elderly, those confronted with both natural and personal emergencies – particularly the victims of domestic violence, the disabled and the disadvantaged.

  3. TSA, as the operator of a residential facility and an approved provider under the Aged Care Act 1997 (NSW), had direct responsibility to ensure that proper safety standards attaching to its plant at the Centre were implemented and maintained, and it had the ability to direct its workers or contractors accordingly.

  4. In performing its role, TSA failed to take appropriate steps to address an obvious, identifiable and foreseeable risk to persons being moved with a patient lifter, namely the risk of injury to those persons falling.

  5. TSA acknowledges the risk of injury associated with a failure of patient hoist was well-known in the industry and specifically identified by TSA in its safe work system.

  6. However, I accept that TSA’s culpability is increased by the fact that the measures that should have been taken, could have been introduced at a relatively inexpensive cost.

Deterrence

  1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

  2. 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 (Hungerford J).

  3. When examining matters of deterrence, both specific and general deterrence apply:  R v Miria [2009] NSWCCA 68.

  4. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be 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 at [74]-[75] which 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.”

  1. General deterrence must be a significant feature of the sentence imposed upon the defendant. It 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 of death or serious injury associated with the aged care sector. A lesson can be learned by not only TSA but others in similar businesses or undertakings. This is particularly so as the proportion of aged citizens, and therefore people likely to require equipment such as lifters, continues to grow.

  2. The aged care sector is unique as it involves the ongoing care for some of our most vulnerable citizens, many of whom have mobility, communication and other health issues, making their reliance on those who care for them a critical part of life.

  3. 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 WHS Act very seriously.

  4. 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 other factors.

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

  6. Specific deterrence is also required in these proceedings so as to serve as a reminder to TSA the importance of maintaining safety standards, especially on plant used in very common tasks, such as that being undertaken on this occasion. TSA continues to operate a number of care homes across NSW, and it is one of the largest faith-based aged care providers in Australia.

Victim Impact Statement

  1. Anthony Redcliffe, son of Mr Redcliffe read a Victim Impact Statement to the court. I was provided with a copy of his statement which became exhibit B.

  2. Anthony Redcliffe is understandably very distressed by what led to the loss of his father. Prior to his father’s passing, he was in very good health Since then, he has suffered nightmares and struggles to sleep, and in the last six months his health as deteriorated with him having had two syncope episodes which has led to the discovery that he has an issue with his heart for which he is to see a cardiologist.

  3. It is evident that Anthony Redcliffe is distressed by the adjournments that occurred in the SafeWork NSW prosecution. Whilst I accept his distress, I do not accept that the delay was in any way due to the conduct of the Prosecutor. To the extent that my case management of the proceedings may have occasioned distress to Anthony Redcliffe, I again apologise. However, it is important that all parties to proceedings are afforded the appropriate time to prepare the case that they wish to present. It is unfortunate that those persons grieving the loss of a loved one are frustrated by delays, which is understandable, but respect must be paid to the entitlement of each party to be afforded the opportunity to prepare and present the case they wish to, unless there is any unacceptable delay. In my view, that did not occur in these proceedings.

  4. I thank Anthony Redcliffe for his bravery in making a statement to the court. I feel privileged to have heard it and I understand how difficult it must have been for him to do so.

  5. I hope that once these proceedings are over, he can “finish grieving and move on with life”.

Aggravating Factors

  1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

  2. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor.

Mitigating Factors

  1. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

  1. The defendant has been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is not entitled to the leniency which might ordinarily apply to a defendant with no previous convictions. However in coming to my determination of the appropriate sentence, I note that given the operations in which STA performed, and was involved in over an extensive period of time, the past offences pale in significance

  2. I accept that the defendant is a corporate citizen of good character. It cannot be said that they are anything but model citizen, and the prosecutor does not submit otherwise: s 21A(3)(f) of the Sentencing Act.

  3. I accept that TSA is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect persons in the facility, and implicit in the operation of an aged care facility, it had systems in place to protect the safety of the vulnerable residents.

  4. I accept that the defendant has demonstrated a very strong commitment to workplace safety, and therefore has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

  5. I accept that the defendant has demonstrated its remorse and accepted responsibility for the offence: s 21A(3)(i) of the Sentencing Act.

  6. The defendant co-operated with SafeWork NSW during its investigations: s 21A(3)(m) of the Sentencing Act.

  7. Whilst what occurred to Mr Redcliffe was dreadful, which has caused significant suffering for his son Anthony, neither of which are to be diminished, the community at large should be very grateful that the TSA exists and for the enormous contribution they make to society, on a not-for-profit basis. The pandemic resulted in many tragedies, as it was all so unknown. I accept that the TSA through its workers were doing the best they could under very difficult circumstances and in accordance with directives from the NSW Department of Health.

  8. The defendant entered a plea of guilty to the AS at an early stage of the proceedings. Such a plea of guilty demonstrates remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

  9. Costs payable to the prosecutor are the “normal” rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. TSA accepts that they ought pay the prosecutor’s costs.

Penalty

  1. I make the following orders:

  1. The Salvation Army (New South Wales) Property Trust is convicted.

  2. The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty.

  3. Accordingly, I order the defendant to pay a fine of $300,000.

  4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

  5. The Salvation Army (New South Wales) Property Trust is to pay the prosecutors costs agreed in the sum of $60,000 plus GST.

Decision last updated: 20 December 2024

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Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37