NSW's Highest WHS Fine: A Tragic Case of Neglect and Recklessness

Before reading and asking why this didn't result in a custodial sentence, it is important to know that NSW is the last jurisdiction in Australia to not have custodial sentences for WHS Offences. On 4 June 2024 the states second bill to create an Industrial Manslaughter offence (the LNP refused to further criminalise killing workers in 2020) went to parliament which will increase the penalty for this sort of conduct to 25 years imprisonment and/or $20,000,000 in fines (realistically $15,000,000 under the EAGP scheme).

In a 2023 ruling, the NSW District Court handed down the highest Work Health and Safety (WHS) fine in the state's history to A1 Arbor Tree Services Pty Ltd and its director, Tony Saunders. The case, which culminated in a $2,025,000 fine for the company and $101,250 for Saunders, underscores the catastrophic consequences of neglecting workplace safety.

The Vulnerability of the Victim

At the heart of this case was Mr Samuela Cirivakayawa, a Fijian national who had arrived in Australia in 2018. Cirivakayawa, a former teacher, had only recently started working with A1 Arbor Tree Services on a trial basis. With limited experience in tree removal and an even shorter period handling the dangerous woodchipper, he was tragically unprepared for the risks he faced.

Mr Cirivakayawa's vulnerability was compounded by his status as a new immigrant, unfamiliar with the intricacies of Australian workplace safety regulations. This tragic combination of inexperience and vulnerability made him particularly susceptible to the hazards that A1 Arbor Tree Services and Saunders failed to mitigate.

Multiple Chances to Rectify

The court found that both A1 Arbor Tree Services and Tony Saunders had multiple opportunities over several years to address the severe safety deficiencies that ultimately led to Mr Cirivakayawa's death. The woodchipper in question, a Bush Bandit Whole Tree Woodchipper Model 2090, had been used by the company since 2015. Despite numerous warnings and documented safety defects, the necessary repairs and safety measures were not implemented.

An image of a similar woodchipper. Credit: Mason Tractor.

From as early as February 2016, issues with the woodchipper's feed control bar—a crucial safety feature—were identified. The absence of this feature meant that operators needed to dangerously reach over the infeed tray to control the machine, significantly increasing the risk of being drawn into the woodchipper. Despite repeated notifications from the servicing company, Bandit Tree Equipment, Saunders failed to rectify this critical safety flaw.

A Tragic Incident

On 7 September 2019, the inevitable occurred. While working at Cromehurst School in Lindfield, Mr Cirivakayawa was fatally drawn into the woodchipper. The court noted that there was no daily safety check of the woodchipper, no adequate training or supervision, and no functional safety devices installed—all of which contributed to the tragedy.

The court's decision highlighted the "obvious and clearly foreseeable risk to safety" that A1 Arbor Tree Services and Saunders ignored. Despite having the means to address these risks, the defendants displayed a blatant disregard for the safety of their workers.

A Landmark Ruling

In sentencing, Judge Strathdee DCJ emphasised the need for both specific and general deterrence. The severe penalties imposed are a stark reminder to all employers of the paramount importance of workplace safety. They reflect the court's commitment to ensuring that such a tragic event never occurs again.

The fine serves as a critical warning: workplace safety is not optional. Employers must take all reasonably practicable steps to protect their workers, particularly those who are vulnerable or inexperienced.

Mr Cirivakayawa's story is a sobering reminder of the human cost of workplace negligence. As we reflect on this landmark case, it is crucial to remember the importance of stringent safety measures and the irreplaceable value of human life.

Case: SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256 Prosecutor: SafeWork NSW, Barrister Colin Magee

Defence: Leeds Lawyers, Barrister Dean-Lloyd Del Monte

Author: Daniel Patterson (WHSO W01422)