By Dr Laura Sowden, Partner, Jessica Elakis, Lawyer and Amber Zhang, Law Graduate

SafeWork NSW v Bennett (No 2) [2022] NSWDC 453

Mr Bennett was a sole trader, operating an unincorporated business (trading as Highlands Cranes) hiring out and operating cranes.

A crane owned by Mr Bennett/Highlands Cranes was operated by Mr Druce, an unlicensed and inexperienced worker, to operate the crane at the Moss Vale Sewerage Treatment Plant. Highlands Cranes was subcontracted to help dismantle a centrifuge.

Two workers of another contractor were involved in moving the machinery and suffered electric shocks after the boom of the crane came into contact with, or close proximity to, live overhead power lines.

On site there were three persons conducting a business or undertaking (PCBU), namely being the local council, Mr Bennett and another contractor. All three faced prosecution as a result of the incident.

The offences

On 12 August 2022, Mr Bennett was found guilty of two offences:

• a category 2 offence by failing to comply with his duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) towards his worker Mr Druce; and
• a further category 2 offence towards workers of another contractor present on site contravened s 19(2).

Mr Bennett’s submission that the local council, Wingecarribee Shire Council – another PCBU – was responsible for ensuring that Mr Druce was ‘ticketed’ was ultimately rejected and the Court found that he contravened his concurrent duty under s 16 of the WHS Act.

 The Background

A crane owned by Mr Bennett (trading as Highlands Cranes) was operated by Mr Druce, an unlicensed and inexperienced worker, to operate the crane at the Moss Vale Sewerage Treatment Plant. Highlands Cranes was subcontracted to help dismantle a centrifuge.

Two workers of another contractor were involved in moving the machinery and suffered electric shocks after the boom of the crane came into contact with, or close proximity to, live overhead power lines.

 In Dispute

Following a contested hearing in which Mr Bennett and Highlands Cranes were found guilty of offences, the question was what is the appropriate penalty in sentencing Mr Bennett?

Sentencing factors

Totality – Where two offences arise from the same incident, the overall sentence must be “just and appropriate” to reflect the totality of the offending behaviour.

Objective Seriousness of the Offence – The factors that determined the culpability of Mr Bennett to be in the mid-range due are:

• Mr Bennett knew the foreseeable risk as there was guidance material directed to it;
• There was a high likelihood of the risk occurring when Mr Bennett permitted an inexperienced offsider Mr Druce to operate the crane;
• The potential consequences of the risk were death or serious injury;
• Simple and well-known steps were readily available to eliminate or minimise the risk with no burden of inconvenience in being implemented;
• Two workers suffered electric shocks one was initially in a coma and spent approximately three months in hospital, suffering lifelong injuries;
• The legislature’s view of the seriousness of the offences are demonstrated through the $300,000 maximum penalty; and
• These were not continuing offences, but a lapse of judgment by Mr Bennett on the day of the incident.

Deterrence – The penalty must reflect specific deterrence, Mr Bennett is still conducting a business as a crane operator however he alleges his work had dropped off by 85%.

Aggravating Factors – The injury, emotional harm, loss or damage caused to the two workers was substantial.

Mitigating Factors  – Mr Bennett had no previous convictions, was otherwise of good character, is unlikely to re-offend and has shown remorse for the offence.

Parity – Mr Bennett and another contractor on site were found equally culpable.

Capacity to Pay a Fine – Mr Bennett had little or no capacity to pay a fine let alone costs, however a conviction and fine were imposed due to the seriousness of the offence, to reflect the purposes of sentencing and take into account the serious harm caused.

The Sentences

The appropriate fine for the first s 19(1) offence was $10,000, which was reduced to $5,000 in accordance with the totality principle and for the second s 19(2) offence was $25,000.

However, given Mr Bennett’s poor financial position and his concurrent obligation to pay costs, the penalty for s 19(1) was reduced to $2,500 and for s 19(2) it was reduced to $12,500. Despite facing the total maximum penalty of $600,000, Mr Bennett was fined just $15,000.

Mr Bennett was responsible for the $15,000 fine and also to pay the prosecutors costs for the two prosecutions.

Implications

For sole traders who are operating in risky industries and workplaces, they may face personal liability for incidents. This means they could face a criminal conviction, fines and costs which they must pay.

Furthermore, for each safety incident there are multiple PCBU’s who have concurrent responsibilities. Hence, blame shifting does little to resolve the obligation each PCBU has.

When determining a penalty, the court will have regard to deterrence, the objective seriousness of the offence, aggravating or mitigating factors, party of co-defendants, totality and capacity to pay.

Employers and businesses must take obligations imposed by the Act very seriously. Both small and large employers must comply with safety requirements and are expected to do so by the community.