Well known organisations that are convicted for work health and safety offences may face higher fines, following a recent decision of the New South Wales Court of Criminal Appeal.

Tho Services Limited pleaded guilty to three breaches of section 19 of the Work Health and Safety Act 2011 (NSW), after a work experience student sustained permanent eye damage while performing welding tasks without wearing appropriate eye protection.

The New South Wales Court of Criminal Appeal fined Tho Services $240,000.  In doing so, it overturned an earlier decision of the New South Wales District Court, that Tho Services only be required to pay $28,000 for the prosecution’s costs.

One of the key grounds of appeal related to whether or not general deterrence should impact the size of the fine in the circumstances of the case.

The District Court reasoned that there was no need for general deterrence, as Tho Services was engaged in the public service of providing work experience for students, and it would be an “inappropriate use of punishment” to deter other enterprises from providing work experience to students for fear of suffering a substantial fine.

The Court of Criminal Appeal disagreed, finding that the District Court’s reasoning was “unacceptable” and reflected a “fundamental failure” to recognise the importance of general deterrence in an industrial setting.

Importantly, the Court of Criminal Appeal found this offence was a “particularly appropriate vehicle for general deterrence”.  This was due to:

  • the prominent commercial position held by the respondent in its industrial setting; and
  • the notoriety of the injury to the work experience student;

both of which gave the fine significant potential educative value.

This decision sends a clear message to the New South Wales District Court regarding the importance of educating industry when setting fines for work health and safety breaches – particularly when the offender and/or incident is well known.

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