WorkCover Authority of NSW v 4 Lift N Pty Ltd

[2015] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v 4 Lift N Pty Ltd [2015] NSWDC 150
Hearing dates:	7 July 2015
Date of orders:	07 July 2015
Decision date:	07 July 2015
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant, being convicted of the offences will be fined accordingly. The ultimate fine in respect of the s 32 offence will be $60,000, in respect of the s 38(1) offence, $7,500, and in respect of the s 39(1) offence $7,500. In each instance there will be a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs agreed in the sum of $20,000.
Catchwords:	Work Health and Safety Act ss 19(1), 32, 38(1), 39(1) – plea of guilty – unpacking crates from container using forklift to horizontally drag load – serious injury – duty of employer to ensure health and safety of employees – duty to notify regulator of incident – duty to ensure incident site is not disturbed prior to inspection – foreseeability of risk – preventability of risk – specific and general deterrence – no prior convictions – victim impact statement – discount for early guilty plea
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) 4 Lift N Pty Ltd (Defendant)
Representation:	Counsel: Mr M K Scott appeared for the Prosecutor Mr D W Elliott appeared for the Defendant
File Number(s):	14/51017; 14/50991; 14/50969

Judgment

1. On 27 August 2012 Mr Douaihy was injured when he was inside a container and backed up against a wall and a crate of glass toppled and struck him. The defendant has pleaded guilty to three charges. In brief they are:

1. failure to comply with the duty under s 19(1) of the Work Health and Safety Act and exposing Mr Douaihy to a risk of death or serious injury contrary to s 32;

2. failure to notify Workcover of the incident immediately after becoming aware of its occurrence contrary to s 38(1);

3. failure to ensure that the incident site was not disturbed until inspected contrary to s 39(1).

2. Mr Elliott, who appeared for the defendant, commenced his submissions dealing with the latter two charges and it is convenient for me to follow that course. The submission was that the mischief flowing from these offences was limited because nothing was lost. All the evidence and the circumstances of the incident could be fully reconstructed. There is some substance in that submission in this case but it does overlook two things. The first is that when an incident is not notified immediately and the scene is not preserved, even with the best of reconstructions it cannot always be certain that something has not been lost. In this case there are some gaps in the evidence. The sizes and weights of the crates are not known. There is some evidence about this in para 27 of the agreed statement of facts but this is evidence derived from what is thought to be typical. Measurements of the kind mentioned in para 32 of the agreed statement of facts were not available. These included inclination of the ground, orientation of the container and of the surface of the container. One of the problems in this case which I shall come to was the top of the container had not been removed before the incident occurred. Examination by Workcover as to whether that was possible could not be undertaken.

3. The second thing the submission overlooks is that persons under a statutory obligation should not think that they may avoid notifying WorkCover or not disturbing the scene if they satisfy themselves that in taking such a course nothing will be lost. To allow that would offer incentive to persons to continue to work after an incident if they thought no evidence was being lost or investigation hampered.

4. In dealing with the first of the offences I have mentioned I shall be making some more detailed observations about penalty generally which observations I take into account in considering penalty for these two offences. The maximum penalty available for these offences is $50,000 in both instances. I think a fine of $10,000 is appropriate for each offence.

5. I turn to the first of the offences I mentioned earlier. The circumstances of the occurrence of the incident are set out in some detail in the agreed statement of facts. Much of that I need not concern myself with. I set out the salient features.

6. DB Logistics Group Pty Limited contracted the defendant to unpack a container containing crates of glass. The container was transported to a site operated by Vertikote Corporation Limited at 24-26 Barry Road, Chipping Norton for the job to be done. The defendant was informed the container was an open top container. It was but the top was covered by a tarpaulin and that could not be removed. The defendant was equipped to undertake the task by removing the crates of glass through the top of the container. Because the tarpaulin could not be removed the defendant through Mr Dacosta instructed Mr Douaihy to assist in unpacking the crates through the front opening of the container. This required improvisation. A 2‑tonne forklift owned by Vertikote was used. A sling was fitted between the jib attached to the forklift and the base of the crates. Mr Dacosta used the forklift to drag the crates along the floor of the container and out to a point where they could be lifted and loaded onto Mr Douaihy’s truck. Mr Douaihy was instructed by Mr Dacosta to take a position in the container to steady the crate as it was dragged out. He stated that he protested to Mr Dacosta that this was unsafe but Mr Dacosta repeated his instruction and reassured him that it was safe.

7. As indicated earlier the evidence does not disclose the sizes and weights of the crates with the glass. Para 27 of the agreed statement of facts states that crate dimensions can typically range between 1 to 2 metres by 2 to 4 metres and approximately 100 to 400 millimetres wide. They typically weigh between 500 kilograms and 2 tonnes.

8. Some crates were removed using the improvised method. When one of the crates was being removed it began to topple. This crate pinned Mr Douaihy against a wall of the container and seriously injured him.

9. An ambulance was called and Mr Douaihy was removed. Mr Dacosta continued the task of removing the crates of glass and having them delivered and the container was then removed from the premises.

10. When sentencing I need to bear several matters in mind. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purposes of the work health and safety legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any relevant aggravating and mitigating factors including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

11. I start my analysis with a consideration of the gravity of the offence and its objective seriousness. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.

12. As to foreseeability the risk of a crate toppling was blindingly obvious. A crate of glass is a tall, heavy structure on a thin base. Foreseeability was brought home to Mr Dacosta further by Mr Douaihy telling him he thought it was unsafe. Foreseeability of serious injury was also blindingly obvious. A toppling crate of glass plainly has the potential to cause fatal injury.

13. Preventive measures are readily available. An example is lateral support as indicated in the third photograph of tab 3 of exhibit PX1. Cease and desist until the situation is examined and a safe work procedure devised is another example.

14. Also relevant to objective seriousness and moral blameworthiness is the method adopted by the defendant in this case. It was a method adopted with a total disregard for safety. Also relevant is some content of Australian Standard AS2359.2-1985. It states again what should be blindingly obvious and that is with the use of an industrial truck “Never drag a load horizontally along the ground.”

Deterrence

15. Mr Elliott submitted that the defendant had learnt its lesson and there was no need for specific deterrence in this case. I do not agree. The only evidence Mr Elliott drew my attention to to support this submission was that contained in exhibits 8 and 9. Exhibit 8 was a document from Benchmark OHS Consulting Pty Limited dated 7 March 2014. It states that it was engaged by Mr Dacosta of the defendant to set up and implement a work, health and safety management system and training for their management and workers. The document contains nothing specific about what Benchmark has done. Further, it states that the systems and procedures that it has implemented were implemented in June 2013 which is getting close to 12 months after the incident.

16. Often in cases before this Court we see instances where following an incident the defendant acts immediately to implement systems to ensure that an incident of the type that has occurred will not occur again and indeed implement systems of a more general and broad nature. These are often set out in the agreed statement of facts with some precision as to precisely what a defendant has done following an incident. The agreed statement of facts in this case contains a heading “Systems after the Incident”. It contains nothing about systems of work adopted after the incident. Exhibit DX9 is a document from the Parramatta College being a transcript of results for some course undertaken by Mr Dacosta. It reveals that he has undertaken ten units for “Certificate IV in Training and Assessment.” There is no evidence about the content of any of those units. The certificate was issued on 20 June 2013. It reveals that he fulfilled the requirements of the certificate. There is no evidence as to the content of those units other than their title nor what was involved in completing any one or more of them.

17. Specific deterrence, in my view, does remain a factor that needs to be considered.

18. General deterrence also is a factor that needs to be considered. Persons undertaking work of this nature need to be deterred from undertaking practices that are unsafe and need to understand that there are consequences if they do adopt measures that are unsafe.

19. The prosecution has drawn to my attention as an aggravating factor in this case the serious nature of the injuries suffered by Mr Douaihy. They are set out in brief in para 24 of the agreed statement of facts. He sustained injuries to his thighs and legs including a broken left foot and crushed right ankle. He required multiple operations including fitting steel plates to both feet and operations to his right ankle and lower leg including muscle and skin grafts. Details are more fully set out in tab 6 of PX1.

20. There are some subjective matters that I need to bear in mind. The defendant’s written submissions state that Mr Dacosta has a number of solid references as to his prior industrial character and that such is conceded at para 36 of the prosecution’s submissions. It’s not quite correct to say that this is conceded. Paragraph 36 of the prosecution’s submissions draws my attention to some mitigating factors in s 21A and observes that they are relevant to the sentence to be imposed. The character references certainly are relevant and there was no objection taken to their tender. I may summarise the effect of them by saying that the referees speak as to the good industrial history of Mr Dacosta both as to his competence and as to his attention to safety. The references are from Mr Greco, Mr Higgins, Mr Ewings, Mr Turner and Mr Tuscano.

21. The maximum penalty that may be imposed for this offence is $1.5 million. It can only be imposed obviously in the most extreme of cases.

22. The defendant has no prior convictions. The evidence is not expressed as to when it commenced its operations but I think it may fairly be inferred that it had been in business for about ten years, maybe a little less, before the incident occurred.

23. The defendant also seeks relief under the Fines Act. It has put before me some balance sheets and profit and loss accounts. The balance sheet for June 2012 shows that the defendant had a total equity of about $103,000. I do not have the balance sheet for June 2013. The balance sheet for June 2014 shows a total equity of about $158,000. The profit and loss statements cover the 12 month periods ending June 2012, 2013 and 2014. They show respectively profits of about $30,000, $59,000 and $20,000. The last of those reduces to about $13,000 after income tax expenses. That profit and loss statement also shows approximately $65,000 in a wages figure which I am informed were wages paid to Mr Dacosta and his wife. Whilst this information is of some utility, it is not as full as it might be. This is a company, as I would understand it, controlled and run by Mr Dacosta. The resources available to it would include resources that Mr Dacosta, himself, would be capable of resorting to and I do not know what the position is in relation to that.

24. I have been referred to a number of cases. I do not propose to deal with them at all, in my view, they were all cases turning on their own facts.

25. The defendant having pleaded guilty to these charges is convicted accordingly.

26. I have been provided with a victim’s impact statement of Mr Douaihy. One can readily understand the physical injuries and physical consequences and disabilities that he has suffered as a result of his injury. One can also readily understand the mental and emotional consequences that he has suffered. He continues to suffer physical, mental and emotional disabilities and problems. The Court can readily sympathise with him in this respect. The injuries and disabilities that he has suffered, he points out understandably, have impacted also especially on his wife, who has been very caring and supportive of him. These consequences are consequences he was entitled to expect he would have been protected from and should not have been put in a position where he suffered these injuries. He was exposed a risk he should not have been.

27. For reasons I have already set out the penalties I impose will be penalties that bear in mind the fact that he was exposed to risk. His statement may be seen as a manifestation of the consequences a person might foreseeably suffer if he is exposed to risk when he should not be.

28. The defendant, being convicted of the offences will be fined accordingly.

29. The fine I impose in respect of the offence under s 32 is a sum of $80,000.

30. The fine I impose in respect of the offence under s 38(1) is a sum of $10,000.

31. The fine I impose in respect of the offence under s 39(1) is a sum of $10,000.

32. In each instance the defendant has pleaded guilty and cooperated with the prosecution and the timing of the plea and the extent of the co‑operation warrant a discount. I think a discount of 25% is appropriate and it may be applied to each of the fines I have imposed so that the ultimate fine in respect of the s 32 offence will be $60,000, in respect of the s 38(1) offence, $7,500, and in respect of the s 39(1) offence $7,500.

33. In each instance there will be a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs agreed in the sum of $20,000.

**********

Decision last updated: 10 August 2015