perform welding tasks throughout the day and given safety equipment including a safety mask with a visor which had to be
Judgment Summary Supreme Court New South Wales
Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221 Harrison J Tho Services Limited was prosecuted under the provisions of ss 19(1) and 32 of the Work Health and Safety Act 2011, that is, that they failed in their duty of care towards the victim, Alex Thomas, and exposed him to a risk of serious injury. The facts which gave rise to the proceedings are as follows: Mr Thomas, who was then 15 years old and a student at All Saints College at Maitland, attended the premises of Tho Services Limited for work experience. He was given a visitor’s induction by the workshop manager Mr Travis and supervised by a leading hand Mr Gumb. He was assigned to perform welding tasks throughout the day and given safety equipment including a safety mask with a visor which had to be manually flipped down to protect his eyes from the damaging effects of ultra violet light when welding. Despite being provided with this equipment and the ostensible supervision provided to him, Mr Thomas performed welding work throughout the day without lowering his protective visor. As a result, he sustained significant and permanent damage to his eyes. He has been left with a 75 percent bilateral visual incapacity. Tho Services pleaded guilty to the charges under the Work Health and Safety Act and was sentenced by Curtis DCJ who ordered that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act and that the company pay the prosecution’s costs in the sum of $28,000. The appellant appeals from that decision upon a number of grounds, including that the sentencing judge failed to take all reasonable measures to comply with the Act, that he failed adequately to take account of the principle of general deterrence and that the sentence in all the circumstances was manifestly inadequate. The Court found first, that there were no exceptional circumstances present in this case justifying the dismissal of proceedings pursuant to s 10. Secondly, the Court found that the respondent’s position as a large industrial enterprise in a prominent commercial position as well as the seriousness and notoriety of the injury to Mr Thomas made this case a particularly appropriate vehicle for general deterrence. The fact that the respondent was engaged in the provision of a public service providing work experience to students does not lower the need to be careful for their safety but on the contrary heightens it. The Court noted that it was clear that at some point during the day in question, Mr Thomas was welding in full view of the respondent’s employees without a protective visor in place. It found that a more obvious failure of safety protocols was difficult to imagine. Furthermore, the question as to whether the obligations under the Act have been breached This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
is directed at a failure to comply with a statutory obligation to take reasonable care, not a failure to guarantee safety. The Court held that in all the circumstances, taking into account the objective seriousness of the offence, the respondent’s failure to put in place effective safeguards against the risk of injury in the workplace and its egregious failure to monitor Mr Thomas while he was directly exposed to that risk, the sentence was manifestly inadequate. Accordingly, the Court set aside the judgment of Curtis DCJ, convicted the respondent and ordered that it pay a fine of $240,000.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.