SafeWork NSW v Bay Timber Manufacturing Pty Ltd

[2024] NSWDC 585

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Bay Timber Manufacturing Pty Ltd [2024] NSWDC 585

Hearing dates:

28 November 2024

Date of orders:

12 December 2024

Decision date:

12 December 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Bay Timber Manufacturing Pty Ltd was convicted on 28 November 2024.

(2)   The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Bay Timber Manufacturing Pty Ltd to pay a fine of $300,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Bay Timber Manufacturing Pty Ltd to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – steel frame manufacturer – overhead travelling crane moving steel coils – 950 kilogram coil fell onto worker – unauthorised use of plant – inadequate training, instruction and supervision – failure to isolate plant controller – worker was a vulnerable minor

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E, Pt 3 Div 2

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW) cl 203, Pt 3.1

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

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

BW v R [2011] NSWCCA 176

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

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

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, August 2019

Safe Work Australia, Bridge and Gantry Cranes Information Sheet, December 2015

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Bay Timber Manufacturing Pty Ltd (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
J Alderson (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb Lawyers (Defendant)

File Number(s):

2023/244207

Publication restriction:

Nil

Judgment

1. The defendant, Bay Timber Manufacturing Pty Ltd (Bay Timber) manufactures steel and timber frames. On 6 December 2021 Ms Elizabeth Scudds, a labourer, was operating the overhead travelling crane (Crane) repositioning a 950 kilogram steel coil. The coil fell onto her leg, causing serious injuries.

2. Bay Timber has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed workers, in particular Ms Scudds to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,782,579.

The Risk

4. The risk described in par 9 of Annexure A to the Amended Summons (PX 1 Tab 1) is as follows:

“The risk was the risk of workers, and in particular Miss Scudds, being exposed to a risk of serious injury or death as a result of being struck and/or crushed by a steel coil whilst it is being transported or moved.”

Reasonably Practicable Measures

5. Paragraph 10 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Miss Scudds, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a. Isolate and/or lock out the remote control for the [Crane] to prevent unauthorised access to the [Crane]; and/or

b. Require that a flat web lifting sling was used to lift steel coils on the [Crane]; and/or

c. Verify that the steel coils were stored in the correct orientation in the storage racks prior to loading on the [Crane]; and/or

d. Develop, implement and enforce a safe work procedure for the task of loading steel coils on the [Crane] at the site which:

(i) outlined the requirement to isolate and/or lock-out the remote control of the [Crane] to prevent unauthorised access;

(ii) required that a flat web lifting sling be used when transferring a steel coil on the [Crane] to the FrameCad;

(iii) Documented a prohibition that workers under the age of 18 years old were prohibited from using the [Crane];

(iv) Documented a prohibition that the steel coil was not to be freestanding on the ground when the orientation of the ‘C’ hook on the [Crane] needed to be repositioned; and/or

e. provide more thorough training and instruction to workers in the safe work procedures for the task of loading steel coils on the [Crane], including the procedures outlined at paragraph (d) above; and/or

f. provide adequate supervision to workers to ensure that:

(i) the safe work procedures for the task of loading steel coils on the [Crane] were being followed;

(ii) unauthorised workers were not using the [Crane];

(iii) workers were not adopting the procedure of allowing a steel coil to be freestanding on the ground, when the orientation of the ‘C’ hook on the [Crane] needed to be changed; and/or

g. enforce that Miss Scudds was prohibited from using the Crane until she was 18 years of age.”

Background

6. The parties presented an Agreed Statement of Facts (PX 1 Tab 2) and this material is summarised below.

7. Bay Timber operates a business at Beresfield (the site) manufacturing timber and steel building frames, timber trusses and steel joists. Mr Ian Livingstone was the sole director of Bay Timber until June 2022. After June 2022 Mr Jonathan Livingstone took over as Bay Timber’s sole director.

The Plant

FrameCad F325iT

8. Bay Timber owned and operated several metal roll pressing machines (known as “roll former” machines) at the site, including a FrameCad F325iT machine (FrameCad).

9. The FrameCad is a steel processing machine that is used to produce steel wall and truss frames. The FrameCad uses a powered de-coiler unit to supply steel coil strip to the in-feed of the machine. A “stick” (consisting of various sub-frame components manufactured in the machine) is then ultimately ejected from the machine.

The Overhead Travelling Crane

10. Bay Timber owned and operated an ABUS single-girder Crane at the site. A flat “C” hook was attached to the hook block of the Crane.

11. The Crane was used to transfer steel coils from the production floor to the roll former machines. The steel coils were stored vertically in a rack in the western end of the metal pressing area of the site. The Crane was operated by a remote control.

The Workers

12. As at 6 December 2021 Bay Timber employed approximately 225 workers.

13. Bay Timber employed Ms Scudds as a labourer. Ms Scudds commenced employment with Bay Timber on 18 October 2021. As at 6 December 2021 Ms Scudds was 17 years old.

14. Ms Scudds’ duties included monitoring the roll former machine, alerting the supervisor when the metal coil was running low, placing small sections of frame from the roll former machine onto a trolley (so they could be moved to the next stage of the process) and ensuring the work area was tidy.

15. Prior to commencing work with Bay Timber, Ms Scudds had worked as a machine operator at a sheet metal production company for approximately eight months. Ms Scudds’ duties in her former role included rolling and forming steel for the roofing industry.

16. Bay Timber employed Mr Craig Ward as a production manager and Mr Ashley Novotny as a line supervisor. Mr Ward and Mr Novotny were responsible for supervising Ms Scudds.

The Incident

17. At approximately 9.25am on 6 December 2021, Ms Scudds was operating the Crane to load a steel coil onto the de-coiler unit. The steel coil was approximately 1.1 metres in diameter, 172 millimetres wide, and weighed approximately 950 kilograms.

18. After Ms Scudds had picked up the steel coil from the storage rack she lowered the steel coil to the ground. Ms Scudds then attempted to reposition the C-hook because the steel coil was not in the correct orientation for placement onto the de-coiler unit. As Ms Scudds was doing so, the steel coil fell onto her leg.

19. Ms Scudds suffered a fractured right tibia, with abrasions and punctures. Ms Scudds still suffers from nerve and ligament damage and walks with a limp.

20. In early 2024 Ms Scudds returned to employment on a part-time basis but in a different industry. She still receives medical treatment and physiotherapy for her injuries.

Investigation of the Incident

21. Howsafe Pty Ltd (Howsafe) was engaged by Bay Timber to provide health and safety solutions for the business prior to the incident. Following the incident, Howsafe investigated the incident to inform Bay Timber of the changes that were required to prevent the incident recurring in the future.

22. The Howsafe investigation report (PX 1 Tab 7) was provided to SafeWork NSW (SafeWork).

Guidance Material

23. Clause 203 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) provides:

“Management of risks to health and safety

A person with management or control of plant at a workplace must manage risks to health and safety with plant, in accordance with Part 3.1.”

24. Part 3.1 of the WHS Regulation is titled “Managing risks to health and safety”.

25. The SafeWork Code of Practice, Managing the Risks of Plant in the Workplace (August 2019) (PX 1 Tab 12) provides:

“3.3 Using plant in the workplace

Workers who operate plant should be competent or suitably supervised during training so they do not put themselves or others at risk.”

26. The Safe Work Australia Bridge and Gantry Cranes Information Sheet (dated December 2015) (PX 1 Tab 13) states:

“Isolation and lockouts

To operate bridge and gantry cranes safely there should be an ability to isolate or lock them out, for example to:

• prevent unauthorised use when the crane is not being used”.

Systems of Work Prior to the Incident

Job Safety Analysis

27. At the time of the incident, Bay Timber had a Job Safety Analysis (JSA) (PX1 Tab 8) in place for the use of the Crane to load steel coils. The JSA identified “crush injuries”, “lifting equipment not attached correctly”, “hook not secure on coil” and “load drops” as potential hazards associated with the task.

28. The JSA outlined the following control measures to address the above hazards:

1. Confirm lifting equipment is attached correctly.

2. Always conduct a pre-lift final inspection, confirm hook is secure on coil.

3. Operator is to remain next to the coil at all times.

29. The JSA provided that a “Bay Timber Induction” was required to complete the task and that a “supervisor is to appropriately train staff members before giving permission to operate overhead crane”.

30. The JSA also required “supervisor[s] to be trained in hazard identification, risk assessment and control” and that the “operator has undergone Bay Timber Overhead Crane Training including reading SWMS [Safe Work Method Statement] and SWP [Safe Work Procedure] and completing practical demonstrations of correct loading techniques”.

31. Mr Novotny had not seen the JSA prior to the incident. Nor had Mr O’Donnell and Mr Gibson, two labourers employed by Bay Timber.

Safe Work Procedure

32. Bay Timber had a Safe Work Procedure (SWP) (PX 1 Tab 9) for the use of the Crane to load steel coils. It outlined the following steps for the task of “before lifting load”:

“Confirm lifting equipment (hook) is attached correctly … and attachment latch is securely closed.

…

Always conduct pre lift final inspection, confirm hook is secure on coil.”

33. The SWP outlined the following steps for the task of “conducting lift”:

“… raise the coil slightly off the ground and check the coil is balanced on hook and secure.

…

Operator to remain next to coil at all times, confirm that operator is to the side of the coil, and feet are not under the coil whilst being loaded.”

34. Mr O’Donnell and Mr Gibson had not seen the SWP prior to the incident.

Isolation/Lock-Out of the Crane Remote

35. Prior to the incident, Bay Timber did not lock out or isolate the remote control of the Crane and had no procedures in place to prevent unauthorised access to the Crane.

36. As at 6 December 2021, the remote control for the Crane was stored on the hook of the Crane and was accessible to anyone.

37. The JSA and SWP for the use of the Crane did not address the requirement to lock-out the remote control of the Crane to prevent unauthorised access.

The C-Hook

38. Prior to the incident, a C-hook was used to lift steel coils on the Crane.

39. Following the incident, the C-hook was removed from operation and flat web slings were used to lift steel coils on the Crane.

Storing Steel Coils and Repositioning the C-Hook

40. Steel coils were sometimes loaded in an incorrect way on the storage racks. When this occurred, the steel coil would need to be flipped around to be loaded on the FrameCad machine correctly.

41. The JSA and SWP for the use of the Crane to load steel coils did not outline a procedure for repositioning the orientation of the C-hook.

42. Prior to the incident, workers were not prohibited from repositioning the C-hook while the coil was freestanding on the ground.

Operation of the Crane – Prior Use

43. Mr Ward and Mr Novotny instructed Ms Scudds that she was not permitted to operate the Crane but that once she turned 18 years old, she would be given training. Ms Scudds told Mr Novotny that she was allowed to use the machines at her old job.

44. Ms Scudds had used the Crane prior to the incident and had undertaken the task of loading the de-coiler unit a “fair few times”, despite being told not to use the equipment.

45. Mr Novotny and Mr O’Donnell had used the Crane with Ms Scudds prior to the incident. Mr Gibson also observed Ms Scudds using the crane unsupervised a “fair few times” and brought it to Mr Novotny’s attention.

Information, Instruction and Training

46. Bay Timber had an online induction training in place prior to the incident. Ms Scudds had not undertaken Bay Timber’s online induction training prior to commencing work at the site.

47. Ms Scudds received on the job training for approximately one week when she commenced work at the site.

48. Bay Timber had a “Cranes – Training Module” (PX1 Tab 10) in place prior to the incident which provided:

“Operating cranes is complex and dangerous and workers must have the necessary skills and capabilities to do it safely.

…

SafeWork Procedures

Bay Timber have developed a safe work procedure for the operation of the overhead crane for lifting steel coils.

All persons whom will be operating the overhead crane are to have read and understood the safe work procedure.

Competency to Operate Crane

As part of Bay Timber’s commitment to your safety, all persons whom will be operating the overhead crane must complete competency training prior to approval for use.

This training includes communication of the Safe Work Procedure for use of overhead cranes to load steel coils and a practical competency. This will be carried out bi-annually for all crane operators as well as post any incident involving the overhead crane.”

49. Prior to the incident, Mr Novotny, Mr O’Donnell and Mr Gibson had shown Ms Scudds how to use the Crane. However, Ms Scudds had not been formally trained in the safe work procedures for using the Crane and was not authorised to use it.

Supervision

50. Ms Scudds was not being supervised at the time of the incident.

51. Ms Scudds usually worked alone but asked other workers for help when required.

52. At the time of the incident, Mr Novotny was approximately 20 metres away on the other side of the metal pressing area operating a roll former machine. He did not see Ms Scudds operating the crane before the incident occurred.

Systems of Work After the Incident

53. On 7 December 2021, SafeWork issued an Improvement Notice to Bay Timber which required Bay Timber to review the provision of information, instruction and training to workers undertaking high risk tasks.

54. In response to the incident and the Improvement Notice, Bay Timber undertook the following actions:

1. Installed a lock box to secure the Crane remote control unit from unauthorised access (so that only the supervisor was able to unlock the container that holds the remote control unit).

2. Replaced the C-hook on the Crane with a sling to prevent the steel coils falling off the hook.

3. Restricted access to the steel coils (blocked off and restrained by a chain).

4. Reviewed the management of the steel coils, in particular storage and movement.

5. Provided a safety talk on “young workers” at the site.

6. Reviewed its work health and safety (WHS) policy and procedures, with specific consideration of young workers.

7. Conducted a risk assessment and developed a new SWP for the FrameCad Roll Forming Machine.

55. The new “Safe Work Procedure – FrameCad Machines” (PX 1 Tab 11) provides:

“DO NOT

X Use the crane unless deemed competent! The controller must be secured when not in use.

X Leave steel coils free standing, they must be stored in the stands without risk of falling.

X Place any part of the body under a suspended load …

…

2. Precautions

2.1 All workers must be trained, deemed competent by Bay Timber and authorised to safely operate the FrameCad Roll Forming Machine.

…

6. Overhead Crane Usage

Only authorised and competent workers (through VOC), over 18 years are to use the Overhead Crane.

An overhead crane daily pre-start must be conducted in Bay Safe prior to use.

At Bay Timber the remote crane controller must be secured in the lock box when not in use.

Only the flat web sling can be used by workers to move metal coils. No other lift is permitted.

…

All workers must ensure the crane controller is returned, stored and locked away when not in use.

The machine supervisor is responsible for the locking and unlocking the box for each shift.

…

8. Storing and Isolating Steel Coils

NOTE: STEEL COILS MUST NEVER BE LEFT FREE STANDING.”

Evidence for the Defendant

56. Mr Jonathan Livingstone swore an affidavit on 14 November 2024 (DX 1). Mr Livingstone is the sole director of Bay Timber and has managerial responsibilities for the company and its day-to-day activities.

57. Mr Livingstone has been involved with the business of Bay Timber since its purchase in 2009. Between 2009 and 2020 he took an active role in manufacturing and worked “on the tools”. The administration of the business was left to Mr Livingstone’s father, Mr Ian Livingstone.

58. Mr Ian Livingstone was the sole director of Bay Timber at the time of the incident. In around September 2022 Mr Ian Livingstone retired and Mr Livingstone became a director.

Statement of Regret

59. On behalf of Bay Timber, Mr Livingstone said that he deeply regrets not keeping Ms Scudds safe at work. He acknowledged that the company’s safety systems and practices at the time of the incident were inadequate and failed to protect Ms Scudds. Mr Livingstone also acknowledged the significant physical, emotional and psychological impact that this incident has had on Ms Scudds, her family, and her colleagues”. Mr Livingstone unreservedly apologised to Ms Scudds, her family, and the workers affected.

Safety at Bay Timber After the Incident

60. Immediately after the incident Bay Timber commissioned Howsafe, their external safety consultants engaged at the time of the incident, to provide an Incident Cause Analysis Method Report (ICAM) to identify the root causes of the incident and any deficiencies in the company’s safety systems. Howsafe subsequently provided its report to SafeWork (PX 1, Tab 7).

60. Howsafe was responsible for managing, implementing and resourcing the safety management system at Bay Timber. Bay Timber’s safety system was controlled by Howsafe, who reported to Mr Ian Livingstone.

61. Mr Livingstone directed Howsafe to discover what happened and to put measures in place to prevent a recurrence, despite not being Bay Timber’s director at the time. Mr Livingstone said that he did this “because Ian was not coping with the stress following the incident”.

Bay Safe

63. After the incident Bay Timber engaged the independent services of a WHS consultant, Mr Gareth Hughes, to assess the existing safety systems, prioritise changes, and recommend improvements tailored to the company’s operations.

64. Mr Livingstone said that upon reviewing the ICAM findings and with Mr Hughes’s assistance it became evident that reliance on Howsafe and its systems were misplaced. Bay Timber terminated its engagement with Howsafe.

65. Mr Hughes assisted Bay Timber to evaluate possible solutions for a new safety management system. The system that was selected was called “Done Safe”. Done Safe was rebranded to “Bay Safe”.

66. With the introduction of Bay Safe, Bay Timber initiated a company-wide prioritisation of safety. Mr Livingstone said that he endeavours to “consistently demonstrate an unwavering commitment to safety” through actions, communication and leadership throughout his daily interactions and decision-making.

67. The Bay Safe initial set up cost was $7,018 which included developing and implementing the system and training workers on the system. There is an ongoing annual commitment of approximately $7,000 for the Bay Safe system.

68. Bay Safe is a centralised platform for managing all safety-related documentation, including hazard and incident reporting, training records, and policies. The platform is updated daily with features such as “daily dashboards”, toolbox talk meeting minutes and hazard management tools.

69. Bay Safe also tracks all inductions, trainings and licences, holds all policies, procedures, hazard forms, pre-starts and toolbox talk meetings and a range of other information that is used to keep safety at the forefront of everyone’s minds at Bay Timber.

70. Initially, Bay Safe was rolled out to managers, front-line supervisors, maintenance technicians and operators of high-risk plant. Subsequently the system was adapted and extended to the broader workforce. Mr Livingstone said that the expansion has demonstrated measurable improvements including a documented decrease in the number of serious incidents reported since the implementation of the new system.

71. The process of introducing Bay Safe required Bay Timber to develop and implement new policies and procedures. Bay Timber is working towards having the Bay Safe system accredited, with the external auditor meeting with Bay Timber on 14 November 2024 to discuss and plan the next steps in the accreditation process. Mr Livingstone expects the system to be accredited by the end of January 2025 at the earliest.

72. Mr Livingstone said that there are multiple new policies and procedures and that these represent significant advancements in Bay Timber’s approach to workplace health and safety. Some key policy documents and Bay Safe resources were annexures “E” to “L” to Mr Livingstone’s affidavit.

73. To improve the communication of safety issues and general business matters, Bay Timber implemented daily morning meetings with department managers. Photographs showing the morning briefing boards were annexures “M” and “N” of Mr Livingstone’s affidavit. These boards are updated each morning and serve as a visual tool to prioritise tasks.

74. Mr Livingstone said that the briefing board system was introduced to address deficiencies highlighted by the incident, including for example, that Ms Scudds was not inducted on her first day of employment. The briefing boards help Bay Timber managers to ensure that tasks are prioritised and completed based on their urgency and importance.

75. Dedicated positions of Maintenance Manager and Maintenance Supervisor were developed in conjunction with Bay Safe and Mr Hughes to provide a way for workers to raise concerns about equipment and processes, and to ensure that housekeeping is maintained and the focus remains on safety. Workers can also report issues directly to Mr Livingstone or Mr David Ward, the consultant engaged to ensure Bay Timber’s safety system is maintained. Bay Timber also employs a full time WHS Manager who commenced employment on 11 November 2024.

Restructure

76. Following the incident Mr Livingstone identified that Bay Timber’s “existing multi-layered management structure significantly contributed to communication breakdowns within the business”. Critical information was frequently diluted or lost as it passed through several layers of management. Mr Livingstone said that this resulted in a lack of cohesive safety and work plans and led to confusion, inefficiencies, and potential safety risks.

77. Mr Livingstone streamlined Bay Timber’s management lines to ensure accountability and direct communication. Under the revised structure, workers and managers must report issues directly to Mr Livingstone or to designated key personnel, rather than relying on an extended chain of communication.

78. Before the incident Bay Timber’s operations were spread across three locations, making it challenging to oversee activities, enforce safety protocols, and maintain consistent quality control. Bay Timber has invested approximately $11,000,000 to purchase a new site to centralise all manufacturing activities, consolidate operations and improve oversight.

Automation

79. Bay Timber replaced broken machines and updated machinery to ensure they meet current Australian Standards. The upgrades included the automating of various production systems to reduce worker exposure to hazards, without impacting workforce requirements or production capacity.

80. Mr Livingstone listed numerous examples of key processes and equipment to improve safety that have been introduced since the incident. These cover a range of activities including traffic management, forklifts, timber cutting and transporting, nail guns and plates, and manual lifting.

On-Site Safety

81. In addition to the automation changes implemented, Bay Timber introduced on-site initiatives that have contributed to an improved safety-focussed workplace. Some changes include:

1. C-Hook: Bay Timber removed the C-Hook from the Crane and replaced it with a sling. While the C-Hook is an industry-standard piece of equipment, Bay Timber removed it in light of the incident so that workers would not need to return to using the C-Hook.

2. Racking and Guard Rails: New racking was installed to prevent coils moving laterally or forward. The racking means that coils cannot be left freestanding which eliminates the risk of them falling. The cost of the racking was approximately $99,270. Guard rails were also installed to prevent unauthorised access to the coil loading area.

3. Coil-Loading Machine: A risk to employees when steel coils were delivered and moved from the truck to the correct position to be stacked on the engineered racks was identified. A machine that mechanically tilts the coils, removing the risk of coils falling on workers, was purchased at a cost of $56,375. Despite the machine taking longer to load the coil into the racks, Mr Livingstone has instructed the workers to prioritise safety and to use the machine to eliminate the risk, regardless of any additional time required.

Recruitment, Inductions and Verification of Competency

82. After the incident Bay Timber changed its recruitment processes to address safety risks associated with employing young and inexperienced workers. Bay Timber now has a policy prohibiting the hiring of individuals under the age of 18.

83. Bay Timber also established a new induction and training program for new workers, as part of Bay Safe. The new process involves:

1. A paid trial training morning.

2. A comprehensive, three-hour induction.

3. Role specific training.

4. Verification of competency, which requires new inductees to take an exam on their training to ensure they comprehend the safety systems.

Financial Impact

84. Bay Timber is experiencing a downturn in profitability. In the last financial year Bay Timber’s profit was down approximately 40%. Mr Livingstone anticipates that Bay Timber’s profitability this financial year will be even less based on current forecasts. Mr Livingstone explained that the downturn reflects broader market trends and political conditions affecting the residential construction industry, with no foreseeable improvement in the near term. Mr Livingstone said that given the current downturn, the fine imposed will increase the pressure on Bay Timber’s financial position.

85. Mr Livingstone said that despite financial challenges, Bay Timber “remains fully committed to prioritising safety as a core value”. In the 2023/24 financial year, direct expenditure on safety-related initiatives amounted to $406,202.04, excluding the wages of Mr Hughes, the safety consultant. In the 2020/21 financial year Bay Timber spent $88,768.38 on safety-related initiatives (excluding fees to Howsafe).

86. Mr Livingstone said that he has a unique perspective having been involved in the business before and after the incident but also having a period out of the business. He said that the business now compared to the business before the incident is “like night and day”.

87. Mr Livingstone remains dedicated to ensuring that the safety-culture transformation continues.

Consideration

88. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Objective Seriousness of the Offence

89. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

90. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

91. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

92. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

93. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

94. 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. 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.

95. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“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 an event 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.”

96. Further at [42] his Honour continued:

“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 [event] 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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

97. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

98. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was foreseen by Bay Timber.

2. The likelihood of the risk occurring was very high. A 17-year-old worker was left to perform a complex and potentially dangerous task, with no suitable training, supervision or experience.

3. The potential consequences of the risk were death or, as occurred, serious injury.

4. There were available steps to eliminate or minimise the risk. They were taken by Bay Timber promptly after the incident. Bay Timber did have existing safety procedures for the use of the Crane, but no-one made sure that those procedures were followed. Ms Scudds was not even inducted to the job in the first place, let alone trained or supervised.

5. There was no great burden or inconvenience in implementing the steps which should have been taken.

6. Ms Scudds suffered a very serious injury. She spoke eloquently in her Victim Impact Statement (discussed below) about what she has been through already. Her disabilities will be life-long.

7. The maximum penalty for the offence is a fine of $1,782,579 which reflects the legislature’s view of the seriousness of the offence.

99. I find that the level of culpability of Bay Timber is in the upper end of the mid range.

Deterrence

100. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

101. The penalty must reflect the need for specific deterrence. Bay Timber is still conducting a business in a heavy and potentially dangerous industry. Specific deterrence is not a major factor in this case, given the substantial and detailed safety improvements which have been brought into effect.

Aggravating Factors

102. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

103. Ms Scudds was a vulnerable worker because she was so young, and she was not properly trained or supervised: s 21A(2)(l) CSP Act.

Mitigating Factors

104. Bay Timber has no record of previous convictions: s 21A(3)(e) CSP Act.

105. Bay Timber is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Bay Timber was only registered on 15 June 2021, but the business has been in operation since 2009.

106. Bay Timber is unlikely to re-offend: s 21A(3)(g) CSP Act.

107. Bay Timber has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

108. Bay Timber has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Ms Scudds was caused by its actions.

109. Bay Timber entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Bay Timber a 25% discount for an early plea.

110. Bay Timber gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

111. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

112. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

113. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statement

114. The defendant was convicted at the sentence hearing on 28 November 2024.

115. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

116. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

117. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

118. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

119. Ms Scudds read her Victim Impact Statement (PX 2) aloud in court, describing how her life was changed by the incident nearly three years ago.

120. Ms Scudds described “grieving something that was still there” and feeling “loss, pain and numbness all at once”. She was an extroverted, athletic and active “people person” but feels that those qualities have been “ripped away” and that she has “lost a part” of herself.

121. Ms Scudds described feeling sick any time someone looks at her scars. Despite not being ashamed of her scars, she is “humiliated by their story”. It took Ms Scudds over a year to “feel slightly comfortable” sharing her story and to wear clothes that did not cover her scars.

122. Ms Scudds said that she was 17, “a baby, a teenager” who went to work that day but never came home. Since then, she has experienced “unforgiving pain”, had to re-learn how to walk, “endless physiotherapy” and “endless screaming” at her mother to just let her die. Despite all her work and rehabilitation, Ms Scudds still lives “with a ghost of a limb”.

123. Ms Scudds described losing independence and receiving pity, with people looking at her as if she is “something fragile, something that will shatter”. She said that “any respect I had gained, washed away only to hear ‘that poor girl’”.

124. Ms Scudds fought to be where she is today but describes the “natural reaction to succeeding” as always wanting more, wanting to reach a feeling of pride and achievement. She finds it “heartbreaking” that as someone who once played every sport she could, she is now in pain, despite having no feeling below her knee, and is unable to walk for more than an hour before her leg swells and feels as though it will “give out”.

125. Ms Scudds was an exceptional swimmer who loves the water and the ocean, but now it takes her significant “pain and dedication” to go near the water. To stand upright she must dig her feet into the sand. She said it is “horrible”.

126. Ms Scudds said that she has tried every surgery which the doctors, specialists and surgeons recommended, always hoping that something would change, yet it never has. Ms Scudds is now 20 years old and lives with Post-Traumatic Stress Disorder and chronic pain. She experiences night terrors and goes to bed in pain.

127. Ms Scudds sees people around her moving forward in their careers and lives, but she feels “stuck with the same sad story” that she has tried to change. Nearly three years after the incident Ms Scudds said she is “working a dead end job where I can’t even commit to normal hours because I’m a walking contradiction, a young girl with the body of an elderly woman”.

128. The passion that Ms Scudds had for people is gone. She described losing friends, family, relationships, wages, and her drive. Her passion for sport is gone and Ms Scudds said that she constantly trips, limps and needs to sit down.

Costs

129. There will be an order that the defendant is to pay the prosecutor’s costs.

Penalty

130. My orders are:

1. Bay Timber Manufacturing Pty Ltd was convicted on 28 November 2024.

2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Bay Timber Manufacturing Pty Ltd to pay a fine of $300,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Bay Timber Manufacturing Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 12 December 2024