R v Brady Marine and Civil Pty Ltd

[2020] NSWDC 775

District Court

New South Wales

Medium Neutral Citation:

R v Brady Marine & Civil Pty Ltd [2020] NSWDC 775

Hearing dates:

20 October 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order the defendant pay a fine of $450,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5)   The defendant to pay the prosecutor’s costs as agreed or assessed.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of a person undertaking business – risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought to have known

OTHER – unrestrained steel headstocks stored on barge – no adequate risk assessment of storing headstocks in an upright position unrestrained

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2011 (NSW)

Cases Cited:

Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35

Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92

Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531

LawrensonDiecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Limited & Anor(No.3) [2005] NSWIRComm 61

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v Commercial Industrial Group Pty Ltd [2006] VSCA 181

R v Miria [2009] NSWCCA 68

SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632

Veen v R (No. 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

Texts Cited:

WorkCover Code of Practice How to Manage Work Health and Safety Risks (December 2011)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Brady Marine & Civil Pty Limited (Defendant)

Representation:

Counsel:
Mr J Agius SC with Mr M Cahill (Prosecutor)
Mr A Casselden SC with Mr S McIntosh (Defendant)

Solicitors:
Ms Kington, Department of Customer Service (Prosecutor)
Ms Dopson, HWL Ebsworth Lawyers (Defendant)

File Number(s):

2018/387395

Judgment

1. On 15 June 2020, Brady Marine & Civil Pty Limited (ACN 147 065 843) (‘the defendant’) pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) that, by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, the defendant exposed a number of workers to a risk of death or serious injury.

2. The offence carries the maximum penalty of $1,500,000.00.

3. The offence arises from an incident that occurred on 1 March 2017 at a construction worksite located at Barangaroo, New South Wales. The prosecutor tendered a bundle of documents (Exhibit A) which included the Summons and Agreed Statement of Facts which forms the basis of the background set out below.

BACKGROUND

4. In or about September 2015, McConnell Dowell Constructions (‘McConnell Dowell’) was contracted by Transport for NSW to construct a new ferry terminal for the Barangaroo development at Barangaroo, New South Wales (‘the project’). McConnell Dowell conducted a business or undertaking which provided major infrastructure construction project services.

5. On 28 January 2016, McConnell Dowell contracted the defendant to provide marine services and the installation of piling works at the site. The defendant conducted a business or undertaking which involved the construction of wharves and jetties.

6. The project work was undertaken on a barge, the Maeve Anne, (‘the barge’) located at the Barangaroo Ferry Wharf, Barangaroo, New South Wales (‘the worksite’). The barge had a 250 tonne Kobelco crane (‘the crane’) situated on the barge which was used to perform crane lifts. A supply barge was provided by McConnell Dowell to ferry items between the barge and a yard at White Bay.

7. The worksite was a workplace for the purposes of s 8 of the Act.

8. McConnell Dowell was the principal contractor at the worksite and employed Mr Robert Kreft, Project Safety Manager, and Mr Dennis Fitzgerald, Project Manager, who were responsible for project work at the worksite.

9. McConnell Dowell contracted Loughleigh Engineering Pty Limited (‘Loughleigh’) to provide a boilermaker/welder to undertake welding work at the worksite. Loughleigh employed Mr Daniel Hartigan and assigned him to perform welding works at the worksite, including on 1 March 2017.

10. The defendant employed the following workers who were working on the project at the worksite:

• Mr Jason Munce as the Barge Supervisor (until 24 February 2017);

• Mr Francois Labuschagne as the Senior Project Engineer; and

• Mr Allan Woolley as the Crane Operator.

11. Mr Woolley held an open crane driving licence, an advanced riggers ticket, and forklift and elevated work platform tickets. As at 1 March 2017, Mr Woolley had over 45 years of experience in the operation of cranes. At the time of appointing Mr Woolley as Crane Operator for the project, the defendant was aware and understood that Mr Woolley was a qualified, experienced and expert crane operator. The defendant relied upon Mr Woolley’s qualifications and experience in the operation of cranes.

12. The defendant engaged Constructive Workforce Pty Limited (‘Constructive Workforce’) to supply casual labour for the project. Constructive Workforce employed the following workers who were assigned to the defendant to work on the project at the worksite:

• Mr Timothy Macpherson, who worked as a coxswain, dogman and punt master and who had 7 years’ experience in marine construction works;

• Mr Spencer McDonald, who worked as a leading hand and advanced rigger; and

• Mr Adam McKay, who worked as an advanced rigger.

Work Leading up to the Incident

13. From about the end of October 2016 to 24 February 2017, Mr Munce was employed on the worksite by the defendant as the Barge and Piling Supervisor. Mr Munce was experienced and qualified in marine construction, marine works, the erection of jetty structures, barge mobilisation and demobilisation, barge movements and loading, pile extraction, pile-driving, and the removal of temporary works (such as temporary piles and headstocks). At the time of appointing Mr Munce, the defendant was aware and understood that Mr Munce was qualified and experienced, and relied upon Mr Munce’s qualification and experience in the performance of barge and piling supervision duties. On 24 February 2017, Mr Munce was transferred to a new site.

14. By the end of February 2017, the defendant had commenced planning for and demobilising construction materials, plant and equipment from the site. The demobilising work included the removal and demobilisation of temporary piles and headstocks used in the construction of the temporary construction known as ‘Arrestor 4’.

15. On 27 February 2017, Mr Labuschagne assumed the role of Barge Supervisor as well as Project Engineer. Mr Labuschagne was experienced and qualified in civil engineering, project engineering, civil supervision, construction management, and project management, including in the context of marine construction. At the time of Mr Labuschagne assuming the role of Barge Supervisor, the defendant was aware and understood that Mr Labuschagne was qualified and experienced and relied on his qualifications and experience in the performance of barge and piling supervision duties.

16. On 28 February 2017, the defendant removed two large headstocks from the temporary work at Arrestor 4 and placed them on the barge. The landward headstock consisted of two metal cylinders (or piles), that were approximately 610mm in diameter and 2 metres in length, welded approximately 6 metres apart to a metal platform that was approximately 10 metres long. The seaward headstock was of near identical construction though the metal cylinders were welded approximately 5 metres apart (collectively, ‘the headstocks’). Welded to the top of each headstock were two locating guides. Each headstock weighed approximately three tonnes.

17. The headstocks were stored upright on the barge without any sort of restraint. There was no room on the barge for them to be stored lying down on their sides. There was no arrangement for a supply barge to collect the headstocks and take them from the barge to the yard at White Bay nearby, which was also used to perform work in relation to the project.

18. A formal, documented risk assessment was not undertaken by McConnell Dowell, nor the defendant, nor Constructive Workforce in relation to the storage of these headstocks on the barge or in relation to working on the headstocks whilst they were on the barge.

19. The defendant did not otherwise undertake an adequate risk assessment in relation to the storage of these headstocks, upright and unrestrained, on the barge.

THE INCIDENT

20. On the morning of 1 March 2017, workers from Loughleigh, the defendant, and Constructive Workforce signed on for the daily pre-start meeting, which was conducted by Mr Labuschagne. At that meeting, it was directed that the following tasks were to be completed that day:

1. Extract 4x temporary piles at A4;

2. Load/unload supply barge;

3. Cut headstocks from piles;

4. Pack and load vibrohammer to supply barge – demob via White Bay;

5. Weld extension to pile W245; and

6. General crane lifts to/from wharf.

21. The pre-start minutes were signed off by Mr Labuschagne in his supervisory capacity and forwarded to Mr Kreft who was offsite at the time.

22. Work proceeded in accordance with the task list from the pre-start meeting.

23. Later that day, prior to the subject incident, Mr Labuschagne decided that Mr Hartigan should oxy-cut the two locating guides which were welded on the top of each of the headstocks in order to remove the locating guides and in preparation for oxy-cutting the top beams of each headstock off the piles. Once detached, the loose locating guides would be removed from the tops of the headstocks using the barge crane.

24. Mr Hartigan discussed the methodology for removing the locating guides with Mr Labuschagne, Mr McDonald and Mr McKay.

25. The risk of the headstock falling if a sufficient horizontal force was applied to them by the crane was not identified.

26. Mr Hartigan then commenced the task. He obtained a ladder from the barge and leaned it against the headstocks in order to access and detach the locating guides. This took approximately one hour.

27. Once this was complete, Mr McDonald then directed Mr Macpherson to hook-up the locating guides to the barge crane so that they could be removed and added to the scrap.

28. At approximately 4:20pm, Mr Macpherson used the ladder which was rested against the headstocks to access the detached locating guides at the top of each headstock. Mr Macpherson was in contact with the crane operator, Mr Woolley, via two-way radio and hand signals as he did the task. Before performing the work, Mr Woolley thought that there was enough room on the barge to perform this specific task as he saw that the walkways were clear and accessible, that items on the barge were stacked very neatly and in an orderly fashion and because, by the late afternoon on 1 March 2017, the barge had largely been cleared of most of the unnecessary materials which had been transferred to the supply barge. In the operation of the crane, Mr Woolley sought to manage risks associated with the work, including by slewing the hook of the crane out to the left and away from contact with the headstock (as opposed to moving the hook up and over the headstock). Mr Woolley did not have any concerns over his ability to complete the lift safely.

29. At some stage during this process, the crane hook (by this stage with the partial load comprising at least two locating guides attached by lengths of chain) started to whip and criss-cross. The movement of the crane hook was due, in particular, to the wash from a passing ferry. As the crane hook moved, both the chains and the load came into contact with the landward headstock (located on the barge closest to the crane) causing that headstock to rock back and forth laterally. This headstock then toppled into the seaward headstock, which then fell on top of Mr Macpherson.

30. Mr Macpherson died on 1 March 2017 as a result of the injuries he sustained in the incident.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

McConnell Dowell

31. As the principal contractor at the site, McConnell Dowell had overall responsibility for the site.

32. McConnell Dowell had developed and documented a ‘Project Work Health and Safety Management Plan’ (most recently revised prior to the incident on 25 April 2016) for the project.

33. Relevant aspects of this plan included:

• A Project Induction Program requiring induction of all workers onto the site prior to the commencement of work.

• Management of Subcontractors and Service Providers, including a requirement that subcontractors conduct ‘daily pre-start meetings to convey changes’ and ‘daily checks to ensure compliance’. The daily pre-start meetings were used to list the day’s activities ahead, and the minutes of which were signed-off by the relevant Brady Marine supervisory and forwarded to Mr Kreft each morning.

• Toolbox meetings.

• Risk Management, including the preparation, implementation, and review of all Safe Work Method Statements (‘SWMS’). This also included a ‘S.T.A.R.T Card System’ (Stop Think Assess Review and Talk) to be used at the beginning of every shift and prior to starting a new task during a shift.

• A Job Safety and Environmental Analysis (‘JSEA’) process to be conducted by McConnell Dowell for each discrete work activity.

• A ‘WHS Responsibility Matrix’ which relevantly specified that the Project Safety Manager (Mr Kreft) shared responsibility for developing workplace risk assessments.

• An instruction on the proper use of ladders, with reference to a Safe Work Instruction and Safe Operating Procedure, including the direction ‘ladders must be placed on firm, level ground and secured, secured at the top …’.

• A daily site visit by management personnel.

34. In the pre-start meeting minutes for the day prior to the incident, 28 February 2017, which were provided to Mr Kreft, it was noted that the headstocks were to be removed from Arrestor 4 that day. McConnell Dowell did not enquire as to where the headstocks were to be placed or stored after removal or what system of work was to be utilised.

35. In his statement to NSW Police, Mr Kreft stated that he could generally see all of the barge from his desk.

36. Therefore, the fact that the headstocks were stored on the barge from 28 February 2017 should have been known to McConnell Dowell prior to the incident. Despite this, McConnell Dowell did not act on this knowledge (or imputed knowledge) that the relevant SWMS did not address the storage of headstocks on the barge or that a risk assessment had not been undertaken (or arranged to be undertaken) after the headstocks were placed on the barge.

37. McConnell Dowell undertook weekly, rather than daily, inspections of the site.

Brady Marine

38. Brady Marine had prepared and documented a ‘Project Construction Safety Plan’ for the project dated 29 January 2016.

39. Brady Marine did not undertake an adequate risk assessment in relation to the storage of the headstocks, upright and unrestrained on the barge.

40. Brady Marine had a SWMS in place for General Crane Works (SWMS-04).

41. Mr Macpherson worked off a ladder to undertake the task involved in the incident.

42. The task of removing the locating guides from the headstocks was not specifically addressed and recorded in the minutes at the pre-start meeting on 1 March 2017.

43. Brady Marine had ensured that the crane was regularly serviced and well maintained before use.

General Systems of Work

44. A risk existed in relation to the storage of the headstocks, upright and unrestrained on the barge. A sufficient lateral external force applied to them, such as being struck by the crane hook or anything attached to the hooks, presented a risk that the headstocks could topple over unless they were restrained or anchored to the deck of the barge. The headstocks were placed in close proximity to one another so if one headstock fell, there was a risk that it could strike the other and both would then fall over. If either or both headstocks fell over, there was a risk of death or serious injury to any person in proximity.

45. There was no adequate risk assessment undertaken in relation to the storage of the headstocks, upright and unrestrained on the barge. There was no specific SWMS or procedure relating to the storage of the headstocks and/or working on the headstocks whilst the headstocks were located on the barge, upright and unrestrained.

46. There was no prohibition on workers being in the immediate proximity of the headstocks whilst the headstocks were on the barge upright and unrestrained, including at the time that the barge crane was in use.

Vessel Wash

47. Wash from passing vessels had been identified as a general risk affecting the stability of the barge. A speed limit of 8 knots was put in place around the area of the works undertaken on the Project.

48. The Harbour Master of Sydney Harbour and Botany Bay had issued a Notice to Mariners on 12 February 2016 regarding the Project and notifying vessel operators that the Barangaroo area was a ‘No Wash Zone’ while construction was being undertaken. Further instructions and notices were issued by the Harbour Master on 1 January 2017 and 12 January 2017 after some vessels failed to comply with the Notice. Regular meetings were held between McConnell Dowell and various stakeholders including Roads and Maritime Services, Sydney Ferries, Transport for NSW and Captain Cook Cruises to address the issue of non-compliance with the Notices and the issue of ongoing vessel wash at the project site.

49. Despite these actions, the wash created by passing vessels was never entirely resolved and had an ongoing effect on the stability of the barge.

LEGAL OBLIGATIONS AND GUIDANCE MATERIAL

How to Manage Work Health and Safety Risks – WorkCover Code of Practice

50. The WorkCover Code of Practice How to Manage Work Health and Safety Risks (December 2011) was available to the defendant for guidance in relation to assessing and managing risks arising from the project work. The Code of Practice outlines the ‘risk management process’ and the four steps that must be taken in order to understand and control the risks at the worksite: (a) identify hazards; (b) assess risks if necessary; (c) control risks; and (d) review control measures. The Code of Practice was readily available prior to and at the time of the incident.

Work Health and Safety Regulation 2011

51. Part 3.1 of the Work Health and Safety Regulation 2011 (NSW) provides instructions to duty holders in relation to managing risks to health and safety. Specifically, clauses 34 to 38 mirror the risk management process provided for in the Code of Practice above.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

McConnell Dowell

52. In response to an Improvement Notice issued by SafeWork NSW, McConnell Dowell reviewed the defendant’s SWMS-04 Rev D (General Crane Works).

52. McConnell Dowell stood down all workers on the project after the incident and implemented a re-start plan in consultation with Transport for NSW. McConnell Dowell also commissioned an independent internal investigation into the incident.

53. McConnell Dowell arranged for all workers on the barge to undergo a ‘verification of competency’, in which no issues were identified.

Brady Marine

55. SafeWork NSW issued a Prohibition Notice to the defendant to cease all work associated with headstocks in order to eliminate the risk of falling objects. This was complied with.

56. The defendant also reviewed its SWMS-04 Rev D (General Crane Works).

57. After the incident, the defendant’s General Manager, Mr David Brough, attended the site to assist with the re-start of the Project and remained on site until all works associated with the project were complete.

58. The incident was discussed at the defendant’s leadership and board meetings and the defendant’s Senior Managers conducted site visits at its other project sites to reinforce the message that any objects with the potential to fall should be secured or laid horizontally.

CONSIDERATIONS

The Risk

59. It is an agreed fact that each of the headstocks was unrestrained from the time it was landed on the deck of the Maeve Anne and unhooked from the crane on the afternoon of 28 February 2017 until the time of the subject incident:

‘59.   A risk existed in relation to the storage of the headstocks, upright and unrestrained on the barge. A sufficient lateral external force applied to them (such as being struck by the crane hook or hooks or the chains) presented a risk that the headstocks could topple over unless they were placed in proximity to each other, so that if one headstock toppled over, there was a risk that it could strike the other and both would then topple over. If either or both headstocks toppled over there was a risk of death or serious injury to any person in proximity.’

60. The risk was realised when the headstocks toppled following substantial contact from a crane load and chains, which crushed Mr Macpherson.

SENTENCING

61. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions; and

6. to recognise the harm done to the victim of the crime and the community.

THE NATURE OF THE DUTY

62. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training and instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act.

63. The duty required the defendant to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531.

64. The notion of reasonable practicability is informed by the considerations found in s 18 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

65. The duty is one of strict liability: s 12F of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.

66. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out their reasons why sentencers should have particular regard to the maximum penalties specified by statute. Their Honours stated:

‘…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.’

SENTENCING PRINCIPLES

67. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s3(a) of the Act.

68. The court is to be guided by the provisions of the Sentencing Act which include:

1. Section 3A which sets out the purposes of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors to be considered in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

69. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357.

70. This approach to sentencing was reiterated by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way:

‘The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.’

71. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89].

OBJECTIVE SERIOUSNESS OF THE OFFENCE

72. The duty of the defendant requires that it ensures the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

73. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.

74. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.

75. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714].

76. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.

77. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.

78. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows:

‘[34] The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.’

…..

‘[42] The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.’

…..

‘[53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.’ (my emphasis)

79. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.

80. The relevant factors in determining the defendants’ culpabilities are:

1. The defendant by its plea has admitted that;

- there were headstocks stored on the deck of the barge from late in the afternoon on 28 February 2017 until the time of the incident, shortly after about 4.20pm on 1 March 2017

- the headstocks were stored upright and without any form of restraint;

- each of the headstocks weighed approximately 3 tonnes;

- there was a risk to workers, in particular Mr McPherson, Mr Hartigan, Mr Mckay, Mr McDonald and Mr Labuschagne suffering serious injury or death as a result of being struck and/or crushed if the headstocks – or either of them fell over.

2. It is an agreed fact that the headstocks were unrestrained from the time they were loaded onto the deck of the barge and unhooked from the crane on the afternoon of 28 February 2017 until the time of the incident.

3. It is common ground that;

- no specific SWMS or procedure was developed in relation to the storage of the headstocks on the barge upright and unrestrained. I do note however that there were some SWMS that the defendant had developed for the work in general, including SWMS-04 General Crane Works, which should have been followed but were not.

- no SWMS or procedure was developed in relation to the cutting up/dismantling of the headstocks; and;

- whilst there were prohibitions on workers entering exclusion zones, there was no prohibition on workers being in close proximity to the headstocks whilst they were stored upright, unrestrained on the deck of the barge.

4. The failure is the failure of management of the works being performed. R v Commercial Industrial Group Pty Ltd [2006] VSCA 181 at [20]. This encompasses the failure to recognise and to remedy an obvious risk which was brought into existence on 28 February 2017

5. The risk was an obvious one, the measures that ought to have been taken to eliminate, or if it was not possible to eliminate the risk to minimise it, were simple, straight forward and of little cost to the defendant. Had the headstocks been restrained, it is likely that the risk would have been eliminated or at least substantially minimised.

6. In the affidavit of Paul Brady (Exhibit 2) Mr Brady admits that the defendant failed to recognise the risk the headstocks posed upright and unrestrained on the barge, and relied on workers to undertake their own, independent risk assessment:

‘161.   In the above paragraph [25] to (sic)… I have sought to explain the steps that Brady Marine took, prior to the Incident, in order to ensure the safety of its workers throughout its business, and while working on the Barge. Despite these steps, the system implemented by Brady Marine had an oversight in respect of the temporary storage of these unique headstocks on the Barge. In my opinion, the oversight was in Brady Marine’s primary reliance on its barge workers to independently conduct an adequate risk assessment of the headstocks after the headstocks had been placed on the Barge. The oversight was also in Brady Marine’s further reliance on Mr Woolley to independently identify the unrestrained headstocks as a risk before operating the crane.

162.   In my opinion, the oversight existed because:

a.   Brady Marine did not, itself, separately identify for the benefit of those working on the Barge that the headstocks presented a risk, and should have been restrained while in an upright position;

b.    Brady Marine did not, itself, separately identify for the benefit of the crane operator that the headstocks presented a risk, and should have been restrained before the crane was operated – and failed to ensure that the crane was not operated until the headstocks were restrained;

c.    for the reasons I explain below, the probability of the headstocks falling without the application of an external force was low and not necessarily easy to foresee;

d.    before the crane was put into use, the headstocks stood in a vertical and unrestrained position for approximately 24 hours, including the evening of the 28 February 2017 where the ‘no wash’ speed restrictions were lifted when vessels were passing the Project site. This fact would have been a factor in my mind in assessing the likelihood that the headstocks may have fallen over by virtue of a passing vessel wash or a significant swell in the Barangaroo area; and

e.    other, simple but not identical, headstocks (as described in paragraph [42] above) were stored by McConnell Dowell at the Barangaroo worksite and/or at White Bay in an upright position and unrestrained fashion; and

f.    without in any way attempting to shift blame from Brady Marine to its employees, there were errors or gaps in the risk analysis that the employees performed.’

7. The defendant cannot escape culpability on the basis that its employees were not doing what they were supposed to do or that they failed to appropriately or adequately assess and control the risks posed by the headstocks on an independent individual basis. The duty cannot be delegated, and the obligation of the defendant was to effectively supervise the workers in performing their duties such that risks can be identified, and steps can be taken to eliminate or at least minimise the risks to workers. The reliance by the defendant on the use of trained, experienced and skilled workers taking an assessment of the area which did not identify this specific risk does not excuse the defendant’s failure. The defendant’s failure in this regard is significant.

8. The risk that the headstocks when upright and unrestrained on an unstable barge could topple and fall is not just foreseeable, it is glaringly obvious.

9. Significant guidance material was available to the defendant, as detailed above, at the time of the incident.

10. The risk of serious injury and death is clear in circumstances where two headstocks were stored upright and unrestrained on a floating barge which is at least to some extent, inherently unstable when there is no wash, and very unstable when there is significant wash.

11. The use of a crane in circumstances where the headstocks were stored vertically with no restraint is also inherently dangerous. Even more so given the potential instability of the barge, and the possibility of wash or wind causing the chain of the crane to whip or criss-cross, which in these circumstances, caused contact between the chain of the crane and the unrestrained headstocks.

81. The Court is obliged to make an assessment of where, on the scale of criminality, the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].

82. The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00 which reflects the legislature’s view of the seriousness of the offence.

83. By its plea, the defendant has conceded that there were steps which, in all the circumstances of the incident, were reasonably practicable, and if taken, would have reduced the risk.

84. Objectively, the defendant’s breach of its work health and safety duty was serious, and consequently its culpability is high: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35.

DETERRENCE

85. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

86. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388

87. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.

88. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [200] NSWIRComm 71; (2000) 49 NSWLR 610:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

89. General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons with large pieces of plant and material on an unstable barge is concerning.

89. Workers subjected to a risk of serious injury or death as a result of being crushed or struck by a large piece of falling plant is not unique to the circumstances of this defendant. The imposition of a component of the fine directed towards general deterrence, it is hoped, will highlight the need for other corporations and individuals for proper planning and development of procedures to eliminate, or at the very least severely minimise, the presentation of such a risk.

90. Similarly, general deterrence can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of machinery in an industrial context.

91. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

92. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.

93. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.’

95. In these circumstances, I find that the need for specific deterrence is significant given that the defendant remains active in the marine and civil construction industry.

96. The remedial steps taken by the defendant after the incident, as outlined in Exhibit 2, point to the unlikelihood of reoffending and the good prospects of rehabilitation of the defendant. However, this ought not to be assessed as significantly mitigating its culpability.

AGGRAVATING FACTORS

97. The offence involved a grave risk of injury.

98. The tragic death of Timothy Macpherson was a manifestation of that risk.

MITIGATING FACTORS

99. The onus is on the defendant to establish the mitigating factors. I note that the defendant does not have a record of previous convictions: s 21A(3)(e) of the Sentencing Act. This is significant to my mind as the defendant operates in an inherently dangerous industry

100. I accept the defendant is a good corporate citizen and has strong ties to the community: s 21A(3)(f) of the Sentencing Act.

101. I accept that the defendant has expressed unreserved remorse, and has accepted responsibility for its actions and has acknowledged that the death of Mr Macpherson was caused by its actions: s 21A(3)(i) of the Sentencing Act.

102. After the incident the defendant took significant steps to ensure that the risk was properly identified and eliminated. Having taken such steps and accepted responsibility for its actions, I believe that the defendant has good prospects for rehabilitation: s 21A(3)(g) and (h).

103. I note that the defendant co-operated with the prosecutor: s 21A(3)(m) of the Sentencing Act.

104. I accept that this was a reasonably early plea as it came before the matter was listed for trial and thus the defendant is entitled to the 25% discount: s 22 of the Sentencing Act.

105. The defendant accepts that it is not a small business, and that its operation footprint and workforce size is moderate, and its capacity to absorb a fine ought be regarded in terms of the contract prices from which expenses, cost of material and labour ought be subtracted.

106. The appropriate fine is $600,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

107. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. Accordingly, I order the defendant pay a fine of $450,000.00.

4. Pursuant to s 122 (2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

5. The defendant to pay the prosecutors costs as agreed or assessed.

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Decision last updated: 18 December 2020