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). 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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."