District Court New South Wales Medium Neutral Citation: SafeWork NSW v Bidfood NSW Pty Limited [2023] NSWDC 378 Hearing dates: 30 August 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $300,000.00. (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) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed in the sum of $44,500.00 exclusive of 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 COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Bidfood Australia Limited Forklift Operator Assessment Checklist and Questionnaire (May 2012) Bidfood Australia Limited, Staff Development Program, Health & Safety Forklift Handling & Safety Module Bidfood Australia Limited, Staff Development Program, Health & Safety Forklift Handling & Safety Module Bidvest Australia Risk Analysis – Forklifts, January 2010 Forklift Operation (SOP-PID-0006) (issued 5 March 2013) Health and Safety Plan – Forklifts Bidvest Australia Ltd, January 2010 Operator's Daily Checklist (revised July 2017) The SafeWork Australia General Guide for Industrial Lift Trucks The SafeWork Australia General Guide to Workplace Traffic Management, July 2014 Traffic Management Plan, Port Macquarie Foodservice (issued July 2020) Category: Sentence Parties: SafeWork NSW (Prosecutor) Bidfood NSW Pty Ltd (Defendant) Representation: Counsel: Mr N Read (for the Prosecutor) Mr R Coffey (for the Defendant) Solicitors: Department of Customer Service (for the Prosecutor) Moray & Agnew (for the Defendant) File Number(s): 2022/376714 JUDGMENT 1. Bidfood NSW Pty Limited ('the defendant'), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the WHS Act') in that on 27 January 2021, it failed to ensure so far as is reasonably practicable that the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking, failed to comply with that duty and the failure to comply with that duty exposed Mark Hayden ('Mr Hayden'), Brent Seaborn ('Mr Seaborn') and Michael Clark ('Mr Clark') to a risk of death or serious injury contrary to s 32 of the WHS Act. 2. The offence is recorded in the Amended Summons filed on 13 December 2022. 3. The defendant entered a plea of guilty on 8 May 2023. 4. At the time of the offence the maximum penalty was $1,766,130.00. 5. The prosecutor tendered a Victim Impact Statement from Mr Seaborn which became exhibit A, the Prosecutor's Sentence Tender Bundle ('PSTB') which became exhibit B, and a bundle of service records which became exhibit 3. 6. The defendant tendered an affidavit of Barry Plit sworn 28 August 2023 which became exhibit 1. Mr Plit also gave evidence before me. Background 1. The defendant was a company carrying on a business in the food service industry and operated a warehouse located at 3-5 Bolwarra Road in Port Macquarie in the State of New South Wales ('the warehouse'). 2. The defendant is part of a global group, where in Australia it is involved in the supply of food and related products in the food service industry. The defendant operates 3 branches in NSW. The parent company, Bidfood Australia Ltd operates 50 food service businesses across Australia and employs approximately 2,500. Across the broader Bidfood Australia sites, there are 731 units of mobile plant and equipment and over 500 vehicles in the fleet. 3. The warehouse received, stored and distributed food and related products and had two receiving docks, the Eastern Dock and the Western Dock. The Eastern Dock was located closer to the freezer and was therefore used more commonly. 4. Trucks delivering product to the warehouse would be parked outside the warehouse roller doors and unloaded before product was moved into a receiving area inside the Eastern Dock. 5. At the time of the incident, there were no pedestrian walkways inside the receiving area, a space which was approximately 15 metres long and 5 metres wide. 6. On the northern side of the receiving area was the entrance to the freezer store. The entrance was about 3 metres wide and separated by PVC curtains. 7. The defendant had three forklifts. The forklifts were used to load and unload trucks at the warehouse and to move products to and from receiving areas and stores. 8. Products received at the Eastern Dock were temperature sensitive. They needed to be checked and recorded upon receipt to ensure compliance with food safety requirements. Temperature checks were routinely performed within the receiving area before being transported by forklift to the freezer stores. 9. The defendant employed approximately 22 persons at the warehouse, including Willem Van Den Berg ('Mr Van Den Berg') as Branch Manager, and Mr Hayden as Operations Manager. Mr Hayden held a high-risk work license to operate a forklift. Nathan Hill ('Mr Hill') was employed as a Picker Packer and did not hold a high-risk work license to operate a forklift, nor was he enrolled in any training course in order to gain any such license. 10. Mr Clarke and Mr Seaborn were employed as a Picker Packers, and Mr Seaborn held a high-risk license to operate a forklift. Mr Seaborn had commenced his employment with the defendant on or around 15 January 2021, twelve days prior to the incident. 11. From around September 2020, the defendant had allowed Mr Hill to operate a forklift. Mr Hill's primary role since that time had been to mark product in the receiving area before moving it to the freezer store using a forklift. The Incident 1. Prior to 27 January 2021, the forklift operated primarily in the Eastern Dock and freezer stores of the warehouse, a Crown forklift model number SC450-35 ('the freezer forklift'), had no reversing beeper fitted and no seatbelt fitted. The horn worked only intermittently. It is an agreed fact (Agreed Statement of Facts - 'ASOF' [18]) that Mr Hill (who had operated the freezer forklift since around September 2020), that these safety issues had existed for approximately two months prior to the incident. 2. On 27 January 2021, Mr Hayden, Mr Clarke, Mr Hill and Mr Seaborn were working in the warehouse. 3. At approximately 8:17am, Mr Seaborn walked into the receiving area to speak to Mr Hayden about a concern he had regarding the temperature of a delivery and requested a temperature gun. Mr Seaborn took the temperature gun and tested the product in the freezer store before returning to the receiving area. Mr Seaborn stopped momentarily outside the PVC curtains separating the receiving area and freezer store to face Mr Clarke, who was standing on the southern side of the receiving area. 4. Mr Hill was operating the freezer forklift and reversed it out of the freezer store through the PVC curtains and into the receiving area. The speed of the freezer forklift was about a walking pace. Mr Hill did not sound the horn as he reversed through the PVC curtains. 5. Mr Hill struck Mr Seaborn with the freezer forklift causing him serious injury. Mr Seaborn was struck approximately 1.37 metres from the entrance to the freezer store. 6. Mr Seaborn was transported by ambulance to Port Macquarie Base Hospital, suffering serious injuries and was discharged on 15 February 2021. 7. Following the incident, SafeWork NSW conducted an investigation which identified the deficiencies in the safety features of the freezer forklift and safety deficiencies in another Komatsu forklift operated by the defendant. 8. The defendant's own investigation identified the following causes of the incident: 1. Mr Hill was an unlicensed forklift driver; 2. The PVC strip curtains obstructed the path of the travel; 3. The freezer forklift's reverse lights were defective; 4. The defendant's Traffic Management Plan ('TMP') was not specific to the interaction between pedestrians and forklifts in the receiving area; 5. Workers were inadequately trained; and 6. Insufficient safety consultation. Relevant Legislation and Guidance Material 1. Clauses 81 and 82 of the Work Health and Safety Regulation 2017 (NSW) ('WHS Regulation') prohibit a person from carrying out a class of high-risk work (including operating a forklift) unless the person holds a high-risk work licence for that class of high-risk work. There is an exception to the requirement where a person is enrolled in a course of training towards a certification in order to be licenced and under the supervision of a person who holds a licence. 2. Clause 214 of the WHS Regulation provides the person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the plant colliding with any person or thing. 3. Prior to the incident, the following industry guidance material had been published and was available to the defendant ([30] ASOF): * The SafeWork Australia General Guide to Workplace Traffic Management, July 2014 ('WTM Guide'). The WTM Guide set out a risk management approach to traffic management. * The SafeWork Australia General Guide for Industrial Lift Trucks ('ILT Guide') contained detailed guidance as to the safe and prudent use of industrial lift trucks. Importantly, it provided guides as to ensuring that pedestrians and other vehicles are separated, and their paths do not cross. It also provides that a person who operates a forklift truck must hold a high-risk work forklift license and that training for a high-risk work licence must be completed as part of the course delivered by Registered Training Organisation ('RTO'). A person training to operate a forklift can operate a forklift truck at their workplace if they are enrolled with an RTO to train as a forklift truck operator, and directly supervised while operating the forklift truck by person who has both the relevant license to perform the high-risk work and suitable workplace experience. 1. Prior to the incident, the defendant had a number of documents relevantly dealing with the risk the subject of this proceeding: [31] ASOF. Those documents included: * Health and Safety Plan – Forklifts Bidvest Australia Ltd, January 2010. This document identified risks associated with unlicensed drivers, failure to maintain the equipment or operational defects and from operating forklifts in an unsafe manner. * Bidvest Australia Risk Analysis – Forklifts, January 2010. This document identified the potential hazard "proximity [of forklifts] to pedestrians could result in injury to life" classifying it as a "high [risk]". * Bidfood Australia Limited, Staff Development Program, Health & Safety Forklift Handling & Safety Module. This document stated that "forklifts have the potential to harm or kill" and set out operational requirements. * Bidfood Australia Limited Forklift Operator Assessment Checklist and Questionnaire (May 2012). This document set out an assessment process for licenced forklift operators, which was to occur at initial induction and on an annual basis. The checklist included verifying that the operator had completed a Daily Checklist Form and checked operational skills, including maintaining a safe distance from pedestrians, travelling at a safe speed and sounding the horn at blind spots. * Operator's Daily Checklist (revised July 2017). This document required that daily checks be undertaken of "Safety devices: flashing lights, indicator lights, safety shield, operator harness [seatbelt], warning labels, etc., in condition as equipped." The checklist stated: "CAUTION - If the truck is found to be in need of repair or in any way unsafe, or contributes to an unsafe condition, the matter shall be reported immediately to the designated authority, and the truck shall not be operated until it has been restored to a safe operating condition..." * Forklift Operation (SOP-PID-0006) (issued 5 March 2013). This Standard Operating Procedure ('SOP') document was specific to 'Bidvest Central Coast' and specified: 1. Do not operate a forklift unless licensed; 2. Ensure pre-start up checks are carried out and documented in the forklift daily check folder each day, on all forklifts prior to operation; 3. When operating a forklift, you must always stop and give way prior to driving across pedestrian crossing walkways. Forklifts must also obey by the site speed limit which is 8km/h; 4. When entering or exiting doorways or driving around corners, always sound the horn to alert people of your presence; and 5. It is the forklift operator's responsibility to ensure that all pedestrians must be standing at least 2 metres clear of any forklift at all times whether travelling, unloading a truck or removing pallets from the pallet racking. If the pedestrian is within 2m the operator must stop operating a forklift and instruct the pedestrian to move away at least the required 2 metre distance. * Traffic Management Plan, Port Macquarie Foodservice (issued July 2020). The TMP was based on a generic document used across other warehouses operated by the defendant, and relevantly provided: 1. Managing traffic is essential to providing a safe workplace. Vehicles moving in and around a workplace, reversing, loading and unloading our activities frequently linked with workplace injuries and fatalities; 2. Risks must be minimised so far as is reasonably practicable. This can be achieved by careful planning and controlling vehicle operations and pedestrian movement at the workplace. The TMP lists key issues to consider as pedestrian safety; the layout of work areas; signs; warning devices and visibility; and developing a TMP; 3. Under the heading "chiller/freezer receiving area", the TMP set out an exclusion zone procedure. The exclusion zone procedure stated that: 1. Receiving staff were to commence to unload vehicles using a forklift when the receiving area was clear of pedestrians within 3 metres of the dock entrance; 2. Receiving staff will commence to check the vehicles load once the receiving area is clear of all operating equipment (forklifts) and the vehicle is fully unloaded; 3. Once the 'checking off' process is completed by the receiving staff, the receiving staff must clear the receiving area of all pedestrians within 3m of the processed pallets, in preparation for the forklift to shuttle the pallets to the chiller; and 4. During the shuttling of the pallets from the dock to the chiller, the processed pallets on the dock remains an exclusion zone to all pedestrians until the shuttling of pallets has been completed; 1. Under the heading "Use of forklifts and transporters" the TMP stated: 1. Any person operating a forklift must be the holder of a licence to perform high risk work; 2. Operators must be aware that pedestrians have the right of way; 3. Operators must ensure a daily checklist has been completed, prior to commencement of any shift. This will be checked daily for compliance; 4. Forklifts must only travel at a slow walking speed (approximately 5km/h) when approaching any corner, and then must sound horn at the intersection and on entering or leaving an aisle or room; 5. Forklifts must sound horn when approaching any corner, entering or leaving an aisle or room or approaching a pedestrian or hazardous area. 1. Prior to the incident, the defendant; 1. did not undertake a risk assessment in relation to the use of forklifts that was specific to the Port Macquarie warehouse, nor did the defendant implement and enforce its documented pre-incident systems of work; 2. did not enforce the requirement for forklift operators to be licensed, and Mr Hill was permitted to operate a forklift unlicensed on a daily basis for a period of approximately four months prior to the incident; 3. kept high-risk work licences on workers' personnel files, however no record was kept as to when the licenses expired. Mr Hill had received no training or instruction from the defendant on operating a forklift. Mr Hill said he "picked it up as he went along"; 4. did not utilise physical barriers separating workers from forklifts at the warehouse. There were no adequate floor markings, pedestrian walkways or safety signage warning of the operation of forklifts; 5. did not, in accordance with its TMP, exclude non-essential workers from the areas in which forklifts were operating, particularly in the receiving areas, did not implement and enforce a SOP for the operation of forklifts. And did not provide information, instruction and training to all of its workers on a SOP for operating forklifts; 6. engaged Crown to service its forklifts operating at the warehouse, including the freezer forklift. The most recent service prior to the incident took place in September 2020. That service identified no issues with the forklifts' fitted safety features. The freezer forklift was also serviced in October 2019 and February 2020. Those services identified no issues with its safety features. The defendant declined a scheduled service in June 2020; and 7. did not require its workers to carry out daily pre-start checks on its forklifts to ensure the safety features were fitted and functional prior to use. Mr Hill had never seen pre-start checks performed prior to the incident. The freezer forklift had no seatbelt fitted nor was it fitted with a travel reversing beeper. 1. The defendant's pre-incident TMP was a generic document, save for the heading, and almost identical to TMPs for other warehouses operated by the defendant. It did not set out any map or diagram showing the flow of traffic. It was not implemented at the warehouse. Mr Seaborn and Mr Hill had not seen the TMP prior to the incident. Mr Hayden stated that although his induction included information about hazards associated with forklifts, it did not include information about the separation of forklifts from people "because there were no measures for separation in place." 2. Prior to the incident, the defendant's Port Macquarie management undertook monthly documented workplace inspections. The Workplace Inspection Checklists required the manager to check the implementation of the TMP, including the existence of pedestrian and vehicle routes, safe crossing, safe reversing, safe loading and unloading; signs for speed control; blind area controls; and controls for traffic of forklifts and other powered mobile plant. From 30 January 2020 to 27 January 2021, the Workplace Inspection Checklists all stated that these hazards and risks were controlled and did not require attention. Systems of work after the incident 1. After the incident, the defendant took the following steps: 1. The defects to the freezer forklift and the Komatsu forklift were rectified; 2. Mr Hill was moved to a role that did not involve forklift operation and was enrolled in a course to obtain his license; 3. The PVC strip doors were removed from two freezer doors, which eliminated visual obstructions and blind spots; 4. Exclusion zones were created within the warehouse. The defendant implemented a rule whereby each aisle must be "chained off" when a forklift is in use and no other staff are permitted in the area. Pedestrian zones were repainted throughout the site including in the receiving area and Forklift signage was installed around the site, including in the freezer stores and receiving area; and 5. Chains were used to implement exclusion zones in the driveway of the site when delivery trucks were present. The area where the delivery drivers parked was marked using white paint. 1. The defendant changed its system so that workers undertook picking work in the early shifts and replenishing work in the later shift to minimise the need for workers to work in proximity to forklifts and implemented the requirement to undertake daily pre-starts. 2. High-risk work license details and expiration dates were added to the defendant's national internal fleet management system. This enabled notifications to be sent to branch managers prior to license expiration. 3. The defendant revised its TMP for the warehouse, providing further guidelines: [54] ASOF. The defendant's duty 1. The defendant had a duty under s 19(1) of the WHS Act to ensure the health and safety of its workers who may be put at risk from work carried out as part of the conduct of its business, so far as reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]. The duty is positive, nondelegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety. The risk 1. The risk relevant to this offence is described in Annexure "A" to the Summons in the following terms: "10. The risk was the risk of workers, in particular Mr Hayden, Mr Seaborn and Mr Clarke, suffering serious injury or death as a result of being run over by a forklift, whilst undertaking work at the warehouse." 1. The defendant has admitted that there were measures available to manage the risk, so far as reasonably practicable (see paragraph 11(a) – (e) of the Summons). They can be summarised as follows: 1. Undertaking a risk assessment in relation to the use of forklifts at the warehouse: 11(a); 2. Enforcing its pre-incident rule that persons were not to operate forklifts without a high-risk work licence: 11(b); 3. Implementing and maintaining a safe system of work that separated pedestrians and operational forklifts at the warehouse, so far as reasonably practicable: 11(c); 4. Developing, implementing, and enforcing a SOP for the operation of forklifts, at the site which specified certain matters including that unlicenced persons were not to operate forklifts; forklift operators were to undertake a practicable and theoretical competency assessment; required completion of a pre-start checklist which checked critical safety devices: 11(d); 5. Developing, implementing, and enforcing a TMP: 11(e); 6. Providing information, training and instruction in relation to a safe system of work: 11(f); and 7. Undertaking inspections and audits of its workplaces, including the warehouse, to verify that adequate controls had been implemented to manage the risk: 11(g). Sentencing 1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act. 2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: "The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement." 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 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. The duty of the defendant requires that it 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 in the workplace and an assessment of measures to address such risks. 2. 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 v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465. 3. 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 ('Capral Aluminium') at [81]. 4. 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. 5. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5, and 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 at [31]. 6. 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 [2017] NSWCCA 96 ('Nash v Silver City'). 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] 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] 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 (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 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 [34]; 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [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 [34] and [53]; 4. Whether the risk was known or ought reasonably have been known to or identified by the offender; 5. Whether the risk was an obvious or clear one; and 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [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 it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: "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." 1. The following matters are relevant to determining the culpability of the defendant: 1. The risk was obvious and known to the defendant. The pre-incident TMP identified that managing traffic was essential to a safe workplace and that the risks must be minimised, so far as reasonably practicable (PSTB Tab 15, page 3). The risk of being struck by mobile plant, such as forklifts, in a warehouse environment is notorious; 2. The gravity of the risk was serious injury or death. This is evidenced by the very serious injuries sustained by Mr Seaborn; 3. The likelihood of the risk occurring was high. The use of mobile plant to load/unload, move and store palletised goods was a key part of the defendant's business operations. Prior to the incident Mr Hill operated the freezer fork for most of his working day: [19] ASOF. Bidfood's pre-incident Risk Analysis, undertaken 11 years prior to the incident, identified the potential hazard "proximity [of forklifts] to pedestrians could result in injury to life" as a "high" risk: [32] ASOF; PSTB Tab 9; 4. There were simple, straight forward, and available steps which could, and should, have been taken to avoid the risk. The measures were known to the defendant and documented in its pre-incident systems, which were not implemented and enforced. See also the guidance material at [30] ASOF and PSTB Tabs 19 and 20. Further: 1. Mr Seaborn, who was seriously injured, and Mr Hayden both held valid forklift licences and were available to operate the forklift on 27 January 2021; 2. It would have been very simple for the defendant to implement its paper systems and induct and train its workers on measures necessary to safeguard against the risk. However, even the Port Macquarie Operations Managers (Mr Hayden and Mr Denniss) were not aware of relevant documented procedures: [44], [45], [49] ASOF. Mr Seaborn, Mr Hill and other workers had not seen the TMP prior to the incident, which contained critical information to their safety; and 3. The defendant was able to take remedial action quickly after the incident, for example lines demarking pedestrian areas were added to the receiving area two days after the incident: PSTB Tab 6, photo 6). 1. The defendant's failure was not confined to a failure of certain employees or at Port Macquarie branch level. On 9 March 2018, almost three years prior to the incident, in response to the SafeWork NSW Forklift Safety Blitz, the defendant's Regional Manager, sent the Bidfood Operation of Forklift SOP to assist local management with staff training. Managers were instructed to train workers in the SOP and to discipline workers who did not follow the training: [51] ASOF. On 11 October 2018 the Port Macquarie branch management was provided with SOPs to assist management of the risk, including a TMP. However, despite regional management undertaking visits to the warehouse to check operational matters, there was no verification that the SOPs provided in March 2018 had been implemented: [53] ASOF; PSTB Tab 17. This is a significant omission given the nature of the defendant's operations involved a high level of use mobile plant and the period time that passed since the provision of the information/documents to the branch and the incident (2.5 years). At branch level the monthly Workplace Inspection Checklists for 12 months prior to the incident all verified that the site traffic risks were controlled: [53] ASOF; PSTB Tab 18); 2. There is no doubt that prior to the incident, the defendant had in place some systems in place to ensure the work health and safety of its workers including documented systems relating to the use of forklifts which primarily operated in the receiving area of the Eastern Dock and freezer store, it had not undertaken a risk assessment in relation to the operation of the forklifts that was specific to the Port Macquarie warehouse; 3. There existed a number of overarching documented systems relating to the use of forklifts, including a TMP, they were neither implemented or enforced at the warehouse: [39] ASOF; 4. The defendant's management (both regional and local) did not verify that adequate controls had been implemented to manage risks associated with the use of forklifts at the warehouse: [52]-[54] ASOF; 5. The defendant employed Mr Hill as a picker/packer. He did not hold a high-risk work licence to operate a forklift nor was he enrolled in a course of training to be licenced. Notwithstanding this, Mr Hill was permitted to operate a forklift from around September 2020 and operated a forklift for most of his working day: [16] ASOF. The defendant knew Mr Hill was unlicenced and was operating a forklift contrary to its pre-incident systems of work; 6. The defendant accepts that the work, health and safety management system in place prior to the incident was insufficient, but I accept that the conduct does not support a finding that there was an attitude of disobedience towards WHS laws; 7. Mr Seaborn suffered a traumatic left ankle fracture and dislocation and on 27 January 2021, Mr Seaborn underwent left ankle fixation and left leg fasciotomy. On 1 February 2021, he had had further operative treatment, specifically a repeat washout, debridement and closure of the left lower fasciotomy wounds and adjustment of external fixator. On 11 February 2021, Mr Seaborn underwent a further operative fixation of the left ankle fractures and removal of the external fixation. Mr Seaborn was discharged from Port Macquarie Base Hospital on 15 February 2021. 1. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant. Victim Impact Statement 1. Mr Seaborn provided a Victim Impact Statement ('VIS') dated 15 August 2023 which became exhibit A. Attached to the statement are a number of harrowing photos of his ankle and a copy of an x-ray which depicts the "hardwear" that has been surgically implanted. 2. Mr Seaborn's life has been significantly diminished as a consequence of these injuries. He has undergone 9 surgical procedures and has spent more than 30 days in hospital and over 6 months in a wheelchair. He continues to suffer chronic regional pain as the ligaments in his foot have been destroyed. He has extensive nerve damage and sees his GP fortnightly for pain and medicinal help. Mr Seaborn and his wife see a psychologist on a regular basis, and there is a possibility of future surgery. 3. The injuries have destroyed the active outdoors lifestyle that Mr Seaborn and his family enjoyed before the accident. They are unable to travel due to his disabilities. His greatest loss is that he can't play with his young son anymore, as he spends most of his day and night in a recliner with his leg elevated on a pillow – and suffers PTSD and sleeping problems. 4. As a result of the incident the family are now under significant financial stress as Mr Seaborn is unable to work, and his wife has to take time off work to care for him. Mr Seaborn's VIS must have been very difficult to write. I feel very privileged to have read it and thank Mr Seaborn for the bravery he has demonstrated to put such words on paper. I am so sorry that this happened to him, and hope that in the future his pain and suffering might diminish over time. 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. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('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 working in an industry that utilises heavy plant and machinery, and in particular forklifts in areas where pedestrians are present. The risk of collisions between forklifts and personnel in warehousing operations is a notorious risk, and employers need to implement adequate systems to protect workers from the risks associated with the industry. This court has dealt with many cases that involve forklifts, and not just collisions. The numerous decisions are set out at footnote 7 to [23] of the Prosecutor's submissions. 2. 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. 3. 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. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. 4. 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. The defendant is still conducting the business and its operations involve the continuing use of forklifts across multiple sites. 5. The steps taken after the incident in respect of the implementation of further safety measures give me some comfort that the defendant has taken its breach under the WHS Act very seriously and is engaging with its safety responsibilities. This level of engagement is demonstrated by the Chief Executive Officer and Mr Plit in his capacity as a director, who immediately after the incident immediately sought information about the well-being of all individuals connected with the incident and directed the Regional Manager to investigate the cause of the incident in collaboration with the audit and compliance department, alongside the SafeWork investigation. 6. I accept that the defendant, after receiving two prohibition notices and six improvement notices, responded proactively and engaged with SafeWork to ensure compliance. This led to what I accept to be a significant investment into the enhancement of safety systems, which also involved a substantial financial investment. This also involved internal investigations and significant further training of all employees and in particular training on the operation of forklifts. 7. In September 2020 the defendant implemented an online training system which has, I accept, enhanced training and monitoring, particularly with regard to licencing and training. As a consequence of a lot of these processes coming online, the employees who were engaged in the manual record keeping have now been deployed in a proactive process with regard to safety in this work place. 8. I accept that the prospects of rehabilitation of the defendant are very good, however, the need for an element of specific deterrence is still necessary in these circumstances. 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. The defendant's offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act. 3. The severe injuries sustained by Mr Seaborn are an aggravating factor, which the defendant concedes. Mitigating factors 1. In Haynes v CI & D Manufacturing (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 not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. This is a very good record given the industry that the defendant works in and that it has had no safety incidents over the 25 years of operation. 2. I accept that the defendant is a corporate citizen of very good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act. The defendant has provided substantial support to workers in the Lismore region who have been the subject to devastating repeated floods. Several of the defendant's workers lost their homes. The defendant provided emergency funding to assist the workers in obtaining emergency accommodation and food for their families. 3. Further, rather than make workers redundant because of the impact on the defendant's site, which was out of operation between February 2022 and March 2023, workers were redeployed to other sites, which had the substantial benefit of providing ongoing employment. 4. I accept the defendant is unlikely to reoffend, given the significant steps that were taken after the incident: s 21A(3)(g) of the Sentencing Act. I further accept that the defendant has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 5. I accept that the defendant has demonstrated its remorse by providing evidence that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act. 6. These steps, to my mind, demonstrate the defendant's acceptance of its breach, and has put in place a set of procedures to ensure they comply with their duties under the WHS Act. 7. The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act. 8. The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, 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 & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act. 9. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ). 10. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, and I have done so. Costs payable to the prosecutor are the "normal" rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. 11. The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. Penalty 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $300,000.00. 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. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed in the sum of $44,500.00 exclusive of GST. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023