SafeWork NSW v Better Truck Repairs Pty Limited [2021] NSWDC 37

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Better Truck Repairs Pty Limited [2021] NSWDC 37 Hearing dates: 23 February 2021 Date of orders: 3 March 2021 Decision date: 03 March 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Better Truck Repairs Pty Limited is convicted. (2) The appropriate fine is $100,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Better Truck Repairs Pty Limited to pay a fine of $75,000. (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 Better Truck Repairs Pty Limited to pay the prosecutor's costs agreed in the amount of $30,000. 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 – inappropriate method used to transport heavy piece of plant – unqualified workers operating forklifts – maintenance work conducted on excavator bucket whilst it was suspended from the forklift tines – worker launched into the air when his foot came into contact with the front edge of excavator bucket when it slid off tines – gaps in existing WHS systems – inadequate risk assessment – absence of Safe Work Method Statement or safe operating procedure relevant to task at hand 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, 4, 19, 32 Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 36, 37, 38, 39, 81, 83, 218, 219, Sch 3 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard 2359.2-2013, Powered Industrial Trucks – Part 2: Operations, 2013 Safe Work Australia General Guide for Industrial Lift Trucks (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) Better Truck Repairs Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) C Magee (Defendant)