SafeWork NSW v Rex Australia Pty Ltd; SafeWork NSW v Wei Wang [2021] NSWDC 334

SafeWork NSW v Rex Australia Pty Ltd; SafeWork NSW v Wei Wang [2021] NSWDC 334

The risk of a worker being struck or crushed by an unsecured load being lifted by a forklift was obvious and foreseeable, the likelihood of the risk occurring was relatively high because there were no effective controls separating workers and forklifts and the revised procedure required a worker to stand and walk alongside the load, the potential consequences were serious injury or death, and inexpensive and straightforward controls were available and promptly implemented after the incident. Rex and Mr Wang were each culpable in the mid range. Rex's prior similar conviction and the substantial injury were aggravating factors; remorse and early guilty pleas warranted mitigation, including...

Jurisdiction
Australia
Judgment Date
23 July 2021
Procedural Posture
Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty
Outcome
Rex Australia Pty Ltd and Wei Wang were convicted and fined after pleas of guilty.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence' 'risk of Death or Serious Injury' 'forklift Safety' 'objective Seriousness' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay a Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence' 'risk of Death or Serious Injury' 'forklift Safety' 'objective Seriousness' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay a Fine' 'prosecution Costs']

Case Brief

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed on Rex Australia Pty Ltd for failing to comply with its work health and safety duty and exposing a worker to a risk of death or serious injury contrary to s 32 of the Work Health and Safety Act 2011 (NSW).' 'What penalty should be imposed on Wei Wang for failing, as an officer of Rex, to exercise due diligence to ensure Rex complied with its work health and safety duty, exposing a worker to a risk of death or serious injury contrary to s 32 of the Work Health and Safety Act 2011 (NSW).' 'Whether the objective seriousness and culpability of each offender was in the mid range.' 'Whether the offenders had discharged the evidentiary onus of proving limited capacity to pay a fine.' 'Whether orders should be made for 50% of the fines to be paid to the prosecutor and for prosecution costs.']

Ratio Decidendi

The risk of a worker being struck or crushed by an unsecured load being lifted by a forklift was obvious and foreseeable, the likelihood of the risk occurring was relatively high because there were no effective controls separating workers and forklifts and the revised procedure required a worker to stand and walk alongside the load, the potential consequences were serious injury or death, and inexpensive and straightforward controls were available and promptly implemented after the incident. Rex and Mr Wang were each culpable in the mid range. Rex's prior similar conviction and the substantial injury were aggravating factors; remorse and early guilty pleas warranted mitigation, including...

Court Disposition

Rex Australia Pty Ltd and Wei Wang were convicted and fined after pleas of guilty.

Orders

  • ['The offender Rex Australia Pty Ltd is convicted.' 'The appropriate fine for Rex Australia Pty Ltd is $300,000 but that will be reduced by 25% to reflect the plea of guilty.' 'Rex Australia Pty Ltd is ordered to pay a fine of $225,000.' "Pursuant to Section 122(2) of the Fines Act 1996 (NSW), 50% of Rex Australia...