SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294

SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294

The risk that gouchee packs could topple and cause serious or fatal injury was foreseeable and had been foreseen, and measures were readily available to eliminate or minimise the risk. Although the defendant had extensive safety systems, no prior convictions, showed contrition, cooperated, and improved its systems immediately after the incident, it failed to mandate ladder use and failed to implement and enforce exclusion zones with ratcheting. Those failures placed the offence at the upper end of low culpability. A fine of $200,000 was appropriate before applying a 25% discount for the guilty plea, resulting in a fine of $150,000.

Jurisdiction
Australia
Judgment Date
28 October 2016
Procedural Posture
Criminal Workplace Prosecution for Breach of S 32 of the Work Health and Safety Act 2011 by Failure to Comply With a Duty Under S 19(1) / Sentence Following Plea of Guilty
Outcome
The defendant is convicted and fined the sum of $150,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor's costs as agreed or assessed.
Legal Topics
['workplace Prosecution' 'fatal Workplace Injury' 'foreseeability of Risk' 'systems of Work' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'guilty Plea Discount']
['criminal Law' 'work Health and Safety' 'sentencing'] ['workplace Prosecution' 'fatal Workplace Injury' 'foreseeability of Risk' 'systems of Work' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'guilty Plea Discount']

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Procedural Posture

Criminal Workplace Prosecution for Breach of S 32 of the Work Health and Safety Act 2011 by Failure to Comply With a Duty Under S 19(1) / Sentence Following Plea of Guilty

Legal Issues

  1. 1 ["What penalty should be imposed for the defendant's breach of s 32 of the Work Health and Safety Act 2011 after a worker was fatally injured by toppling aluminium ingot packs." 'Whether the risk of injury from toppling gouchee packs and the consequences of that risk were foreseeable.' 'Whether available measures, including mandating ladder use, exclusion zones and ratcheting of ingot packs, could have eliminated or minimised the risk.' "How the defendant's safety systems, post-incident changes, lack of prior convictions, contrition, cooperation and guilty plea affected sentence."]

Ratio Decidendi

The risk that gouchee packs could topple and cause serious or fatal injury was foreseeable and had been foreseen, and measures were readily available to eliminate or minimise the risk. Although the defendant had extensive safety systems, no prior convictions, showed contrition, cooperated, and improved its systems immediately after the incident, it failed to mandate ladder use and failed to implement and enforce exclusion zones with ratcheting. Those failures placed the offence at the upper end of low culpability. A fine of $200,000 was appropriate before applying a 25% discount for the guilty plea, resulting in a fine of $150,000.

Court Disposition

The defendant is convicted and fined the sum of $150,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor's costs as agreed or assessed.

Orders

  • ['The defendant is convicted and fined the sum of $150,000 with a moiety to the prosecutor.' "The defendant is to pay the prosecutor's costs as agreed or assessed."]