SafeWork NSW v Gregory Paul Dunn (2016)

Facts

Gregory Paul Dunn (Defendant) operated a business known as That’s Slashing and Tipper Hire. The business provided property clearing and maintenance services, including lawn mowing and slashing. Mr Pierce was a sole trader with approximately 3 years’ experience working in gardening and landscaping, and he had worked for the Defendant on a casual basis for several years.

In December 2012, the Defendant employed Mr Pierce as a casual worker to undertake general labouring work and machine operation.

The Defendant’s business owned and operated a tractor that was fitted with a fold-down Roll-Over Protective Structure (ROPS) designed to protect the operator from injury should the tractor rollover in any direction.

On 19 December, the Defendant gave verbal instructions to Mr Pierce about the work he wanted him to perform then left him to work unsupervised. A few hours later, a member of the public found Mr Pierce unconscious by the tractor, which appeared to have rolled off a slope and over a retaining wall. Mr Pierce later died from his injuries.

Judgment

The Court heard evidence at the sentencing hearing that although 6 to 8 months before the incident the ROPS had been successfully deployed, an examination of the vehicle revealed that the ROPS had since been tied down with an octopus strap and could not deploy.

There was also evidence that the Defendant had removed the seatbelt a week before the incident because it was not working, but he had not replaced it. There was also evidence that the Defendant did not provide Mr Pierce with the tractor’s manual or instruct him to read it before operating the tractor. The manual specified that the ROPS was to remain up in all situations unless it was “absolutely necessary” to fold it down for areas where there were height restraints. He also did not provide Mr Pierce with any instruction as to the risks involved in operating the tractor on a slope.

The Court found the risk was an obvious one. Further, the measures required to safely operate the tractor were simple, available and not costly, and the deceased should not have been allowed to operate the tractor that day. As such, the offence was in the high range of objective seriousness.

The Defendant was convicted and sentenced to pay a fine of $200,000 but this was reduced to $160,000 after receiving a 20% discount for an early guilty plea. In reaching this amount, the Court took into account the Defendant’s mitigating circumstances as well as the Victim Impact Statements of Mr Pierce’s family.

Lessons

It is clear from this decision that the courts will not take lightly a failure by a business, even one operated by an individual, if there has been a flagrant disregard to ensure that safety devices are in place and operative on plant.

In circumstances where there is an obvious and foreseeable risk of serious injury or death, businesses must ensure all reasonably practicable steps are taken to ensure safety, including ensuring all safety measures are working, there is proper instruction and training and, where necessary, adequate supervision.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.