SafeWork NSW v Craig Arthur Pty Ltd

[2023] NSWDC 218

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Craig Arthur Pty Ltd [2023] NSWDC 218

Hearing dates:

24 May 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Craig Arthur Pty Ltd is convicted.

2   I impose a fine of $45,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no significant record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Texts Cited:

A Guide to Work Health and Safety, SafeWork NSW

Loading/Unloading Exclusion Zones

Mass Management and Basic Fatigue Management Standards Policy/Procedures/Guidelines Manual dated 30 August 2019

WHS Specification for Subcontractors NSW dated August 2018

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Craig Arthur Pty Ltd (Defendant)

Representation:

Counsel:
B Docking (Prosecutor)
B Armstrong (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Precision Legal (Defendant)

File Number(s):

2021/262467

Publication restriction:

None

JUDGMENT

1. Craig Arthur Pty Ltd (Craig Arthur) appears for sentence after pleading guilty to an offence under s 46 Work Health and Safety Act 2011 (the Act), that it failed to consult, co-operate and co-ordinate activities with Hansen Yuncken Pty Ltd (Hansen Yuncken), Force Fire & Safety Pty Ltd (Force Fire) and/or MFD Linehaul Pty Ltd (MFD Linehaul), being persons who had a duty in relation to the same matter.

2. The maximum penalty for the offence is a fine of $100,000.

Background

3. At all material times, Hansen Yuncken was the principal contractor for the construction of warehouses and infrastructure services (the project) at Moorebank Logistics Park, 400 Moorebank Avenue, Moorebank (the site).

4. Hansen Yuncken engaged Force Fire as a subcontractor to undertake the design, supply and installation of fire services and associated works for the site, including a fire sprinkler system, fire detection system, building occupant warning system, and fire extinguishers.

5. Force Fire was contractually obliged to review and make appropriate allowance for compliance with Hansen Yuncken’s Traffic Management Plan (TMP) when completing the work. Force Fire was also responsible for all vertical and horizontal movements of any materials, plant and equipment required to complete the work. Ino Rosic was employed by Force Fire as Charge Hand/Sprinkler Fitter/Site Supervisor.

6. On various dates in August and September 2019, Force Fire placed orders with Fire Fabrication Services Pty Ltd (FFS) in South Australia for the supply of sprinkler pipes and fire service pipes to be delivered to the site.

7. Craig Arthur operated a business involving transport and logistics services based in South Australia. It employed 136 people and operated a fleet of 30 trucks and 60 trailers Australia wide.

8. Craig Arthur was engaged through MFD Linehaul to deliver fire services pipes from South Australia to various businesses in Sydney by 16 September 2019. Craig Arthur provided a B-double truck consisting of a prime mover, a lead trailer and a semi-trailer. It engaged Christopher Detroit, an interstate truck driver with 40 years’ experience, to drive the truck. At the time of his engagement, Mr Detroit had been driving for Craig Arthur on a regular basis for five years.

9. A delivery to a site in Eastern Creek was transported on the lead trailer and the delivery for the site was transported in the semi-trailer. The lead trailer was about 2.5m wide and 8m long. The semi-trailer was about 2.5m wide and 14m long. Both trailers had gates and curtains which could be opened on either side.

10. Craig Arthur was to be paid $4,600 for both deliveries.

The pipe deliveries    

11. On 13 September 2019, the fire services pipes were loaded onto the B-double truck by Fire Fabrication Services, in two stacks weighing a total of about 19 tonnes. The pipes were at least 6m in length and were of various diameters and weights. This included two 250NB pipes with a 273.1mm diameter that were strapped together and weighed 31.75kg per metre each. The estimated combined weight of the two pipes was about 380kg.

12. On 14 September 2019, Mr Detroit departed South Australia in the B-double to make the two pipe deliveries.

16 September 2019

Eastern Creek delivery

13. At or around 8:00am, Mr Detroit arrived at the Eastern Creek site. He was met by the Site Manager for Frasers Property Industrial Constructions Pty Ltd (Frasers), who instructed Mr Detroit to remain in the project site amenities area and wait for an escort.

14. Workers for Frasers told Mr Detroit on numerous occasions to remain within the site amenities area and to stop walking unescorted onto the project site.

15. Mr Detroit opened both side curtains to Lead Trailer A and the Fraser worker assessed the load in preparation for unloading it with a telehandler.

16. The worker observed that parts of the load appeared unstable, with single sections of unsecured pipe amongst the bundled/strapped loads. The worker informed Mr Detroit that the load was unstable and instructed him to stay out of the delivery area and mobile plant operating zone.

17. The worker completed two to three lifts with the telehandler without incident before Mr Detroit appeared in the unloading zone of the telehandler. The worker ceased unloading, instructed Mr Detroit to stay in the cabin of his truck, and then recommenced the task.

18. The worker then observed that Mr Detroit had walked around to the other side of Lead Trailer A. He ceased unloading again and contacted the Health, Safety and Environment Advisor (HSE Advisor) for assistance as a safety observer to ensure the exclusion zone was being maintained.

19. Prior to recommencing the unloading activity, the worker and HSE Advisor had to again instruct Mr Detroit to remain in the cabin of his truck.

20. During the remainder of the task, the HSE Advisor had to instruct Mr Detroit to get back into the cabin of the truck multiple times as he attempted to enter the unloading area.

21. During the unloading, three unrestrained single sections of sprinkler pipe fell from the truck into the exclusion zone.

22. After the pipes were unloaded, Mr Detroit packed up the B-double and left the Eastern Creek site.

Delivery to the site

23. On 16 September 2019, Hansen Yuncken had 15 employees working at the site. Force Fire had five employees working at the site, including Mr Rosic.

24. A daily prestart meeting was held at the site, where Force Fire advised Hansen Yuncken that the pipe delivery was expected that day. On the Daily Prestart Sheet, “Moving Plant/Separation from people (Plant Zones)” was ticked as one of the “Significant Hazards Today”.

25. At around 11:30am, Mr Detroit arrived at the Moorebank site. Mr Rosic had been informed by Force Fire’s Project Manager, Alex Locatelli, that the pipe delivery would be arriving on 16 September 2019 via a B-double truck.

26. The Hansen Yuncken incident report notes that, “It is understood that there was no traffic controller stationed at Gate 3 at this time.”

27. Various Hansen Yuncken signage on the west-facing access gate stated that visitors and deliveries had to report to the site office and that all site personnel must be inducted onto the site before commencement.

28. Hansen Yuncken’s “WHS Specification for Subcontractors NSW” dated August 2018 stated that delivery drivers were required to report to either the site office or security gate. Delivery drivers were required under this document to complete the “Site Induction Record – Delivery Driver Checklist in BIM360” prior to proceeding onto the site to make the delivery. Failure to do so would result in the vehicle not being unloaded and sent off the site.

29. A security guard observed Mr Detroit drive the B-double the wrong way through the Moorebank site. The guard then escorted him to the Hansen Yuncken site. Mr Detroit was instructed to drive to Gate 3, where someone would meet him.

30. Mr Detroit drove to Gate 3, but there was no traffic controller stationed, so he stopped between warehouses 3 and 4.

31. Mr Rosic was operating a telehandler in warehouse 4 when he saw Mr Detroit walking toward him without a hard hat or visibility vest. Mr Detroit approached Mr Rosic and asked if he was the person that he was supposed to meet. Mr Rosic instructed Mr Detroit to go back to the B-double, put on a hard hat and wait for him. Mr Rosic then asked Mr Detroit why he did not call him prior to coming onto the Moorebank site. Mr Detroit stated that his mobile was not working.

32. After completing his other task, Mr Rosic drove the telehandler to the B-double, and escorted Mr Detroit to warehouse 4.

33. After arriving at warehouse 4, Mr Detroit opened the curtains and side gates of the semi-trailer and unstrapped the load. Mr Rosic then unloaded some pipes from the passenger side using the telehandler. Mr Rosic then instructed Mr Detroit to accompany him to Warehouse 3 to unload the larger 22NB-250NB pipes.

34. After arriving at Warehouse 3, Mr Detroit opened the curtains on the driver’s side of the trailer and the side gates, with the assistance of Mr Rosic.

35. Mr Rosic then started unloading the pipes from the driver’s side, as it was closer to where he was going to place the load on the Moorebank site. After unloading the first load of pipes, Mr Detroit approached Mr Rosic in the telehandler and asked if he could have a length of rope which was currently in the skip bin, some distance from the rear of the B-double. Mr Rosic agreed and commenced unloading the second bundle of pipes.

36. While observing the telehandler with the second bundle of pipes, Mr Rosic observed Mr Detroit at the skip bin, talking to another worker. Mr Rosic placed the second load of pipes in the laydown area and returned to the driver’s side of the B-double to pick up the third bundle, which were positioned on the passenger side of the truck.

37. The third bundle of pipes consisted of the two 250NB diameter pipes, strapped together.

38. Sometime between Mr Rosic reversing back with the second bundle of pipes and picking up the third bundle of pipes, Mr Detroit returned to the B-double from the skip bin without being seen by Mr Rosic. On the passenger’s side of the B-double, Mr Detroit bent down to place the rope from the skip bin in the toolbox.

39. While Mr Detroit was on the passenger’s side of the B-double, Mr Rosic was on the driver’s side. Mr Rosic was attempting to pick up the third bundle of pipes but was unable to see the tips of the tynes from inside the telehandler. At this point, the load fell from the passenger’s side of the truck onto Mr Detroit. A witness stated that the load fell from above Mr Detroit’s head, hitting him on the head and causing him to fall backwards, with the pipes ending up on his thigh area. Mr Detroit was rendered unconscious.

Injuries and fatality

40. Mr Detroit was transported to Liverpool District Hospital in a medically induced coma with crush injuries to his head and legs.

41. An initial CT brain scan showed multiple skull fractures, subdural and subarachnoid blood and pneumocephalus (air within the cranial cavity), as well as minor fractures involving two cervical vertebrae. He was taken to theatre on 16 September 2019 for insertion of an external ventricular drain to alleviate elevated intracranial pressure

42. On 16 September 2019, he underwent orthopaedic surgery for the fractures to his legs. On 19 September 2019, his left leg was amputated below the knee as a result of ischaemic changes in the leg.

43. Mr Detroit remained in the intensive care unit (ICU) and despite several interventions and serial neurological assessment in ICU, he demonstrated minimal neurologic recovery. His family were told that he would likely require high-level full-time care. All family members agreed that Mr Detroit would not want to be functionally dependent. On 2 October 2019, Mr Detroit was extubated and died at 6:30pm on that day. The Autopsy Report dated 8 January 2021 reported his cause of death as multiple blunt force injuries.

Systems of work prior to the incident

44. On 12 September 2019, Mr Arthur received an email from MFD Linehaul’s Steve Ross which contained “[s]pecial instructions” for the delivery of the pipes, including the requirement that high-visibility clothing, safety boots and a hard hat be worn. The email stated that this was a “[s]pecial request from our customer in respect of safety”. These instructions were conveyed to Mr Detroit prior to his departure from South Australia by Duane Morton, the General Manager of Craig Arthur.

45. Craig Arthur made the following admissions about its systems of work prior to the incident:

1. there was no site specific traffic management plan for the Moorebank site;

2. there was no designated location that Mr Detroit was required to report to at the site, other than the delivery details and site address details provided by MFD Linehaul;

3. Mr Detroit was not provided with the name and contact details of a designated person to report to at the second delivery site, other than a first name (“Ino”) and a mobile number provided to him by MFD Linehaul;

4. there was no site specific driver’s induction in respect of the site;

5. there were no safety procedures on site, such as wearing high visibility clothing;

6. there was no observer or spotter provided to observe the activity of any powered mobile plant operator or forklift operator unloading the delivery truck and trailer;

7. there was no safe plant on site;

8. there were no exclusion zones provided for; and

9. there was no fit-for-purpose communication between the plant operator and truck driver provided for, including hand signals or two-way radio.

Steps taken after the incident

46. Following the incident, Craig Arthur carried out an investigation and determined that there were no exclusion zones around the truck at the time of the incident. Craig Arthur reminded its workers to undertake inductions at third party worksites and observe all loading/unloading zones. Further, it developed a toolbox talk titled, “Loading/Unloading Exclusion Zones” which was implemented by distributing a copy to its workers and placing a copy on notice boards throughout its depot.

The Offender’s Case on Sentence

47. Craig Arthur tendered the affidavit of Craig John Arthur affirmed on 18 May 2023. Mr Arthur was not required for cross-examination. The following is a summary of Mr Arthur’s affidavit.

48. Mr Arthur is the sole director of Craig Arthur. He has been a director of the company since 1990.

49. The company was incorporated by Mr Arthur’s parents and was a small business that offered cleaning and truck refurbishing services but did not undertake direct transport services.

50. Mr Arthur has been working at the company since he was 18. He took over the company in 1990. His mother, Marilyn Jeanne Arthur, was appointed company director and secretary at the same time. She was succeeded by Ashleigh Kim Arthur in 1993, and then Jo-Ann Lee Arthur in 1995.

51. Mr Arthur is the current company secretary. The company has a share capital of three ordinary shares, all of which are fully paid and beneficially owned by Mr Arthur.

52. The company provides Australia wide commercial and general freight transport services through the use of various haulage vehicles including B-doubles, single trailers, drop decks and tautliners. Some of the company’s major customers include Star Track Express, Direct Freight Express and Northline.

53. The company is based in Wingfield, South Australia.

54. The company has one prior SafeWork conviction relating to an incident that occurred in August 2017. The company pleaded guilty and took steps to ensure that a similar incident did not occur again. Mr Arthur deposed that a similar incident has not occurred since.

55. The company has expanded and has had a substantial increase in contracts over the years. At its largest, the company employed 200 staff and had approximately 77 trucks. At the current time, the company employs 60-70 employees and has about 22 trucks.

56. At the time of the incident, the company employed approximately 136 employees and 30 trucks.

57. At the time of the incident, Benn Cottle was the company’s Compliance and Safety Officer (CSO) and Duane Morton was the General Manager.

58. Mr Detroit was employed by the company as an interstate driver.

59. At the time of the incident, employee conduct was governed by the Mass Management and Basic Fatigue Management Standards Policy/Procedures/Guidelines Manual (the Manual) dated 30 August 2019, extracts of which were annexed to Mr Arthur’s affidavit. It was the company’s practice to distribute documents such as this to employees via email or as a hard copy. Mr Detroit should have had access to this document at the time of the incident.

60. Mr Morton provided instructions to Mr Detroit regarding the delivery of the pipes prior to his departure from South Australia. Mr Morton was responsible for ensuring that the instructions provided were in accordance with the instructions of MFD Linehaul.

61. The pipes were to be picked up from Fire Fabrication at Direk, a suburb of Adelaide.

62. The engagement would have gone through either Mr Morton or Mr Arthur. The person who received the job from a customer would then obtain details relating to the job itself, the job site, the contacts for both collection and delivery of the freight and any other specific instructions. The person who engaged the customer would usually assign the job to the driver, however sometimes the General Manager would do so instead.

63. The company’s first delivery to the Moorebank site was on 16 September 2019.

64. Mr Detroit’s sister, Anna, flew to Sydney from New Zealand when Mr Detroit was taken into hospital. Anna came to Adelaide after Mr Detroit’s life support was turned off and Mr Arthur helped her clean out Mr Detroit’s unit and sell his caravan on behalf of his estate.

65. Mr Arthur remained in contact with Anna after the incident and speaks with her every three to four months.

66. Mr Arthur described the incident as “tragic”. He apologised for the incident on behalf of the company to the Court and Mr Detroit’s family.

Steps taken after the incident

67. After the incident, the company reviewed its operations and conducted an investigation. Mr Arthur advised Mr Cottle and Mr Morton to conduct a toolbox talk about exclusion zones for loading and unloading freight.

68. Mr Arthur also directed Mr Morton to update the line haul manifest and con note, such that the words “Driver Must Remain in Driver Exclusion Zone” appear at the bottom of each page of these documents and in bold,

69. Mr Morton reviewed all relevant guides, codes of practice and legislation and implemented exclusion zone procedure manuals. Training acknowledgment forms were distributed to all relevant employees.

70. As part of the induction process, new employees are now required to read and be signed off on the following documents:

1. CAT NHVAS Management Standards;

2. New Employee pack;

3. Safety Exclusion Zone Procedure; and

4. CAT training records.

71. On 20 March 2023, Mr Morton sent the drivers a document titled, “A Guide to Work Health and Safety” produced by SafeWork NSW. This Guide details various issues that need to be addressed by drivers, including consultation with stakeholders and exclusion zones.

71. Mr Arthur described an incident that occurred on 2 May 2023 which he claimed demonstrated the efficacy of the company’s new training procedure, whereby one of the company’s employees deemed a delivery unsafe upon arriving at an unloading site, based on training regarding loading and unloading zones. The employee, Mr Morton, who is now the CSO, advised him to leave the trailer behind at the site and return once it was safe to do so.

Consideration

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

Objective seriousness

74. The offender owed a health and safety duty to Mr Detroit to ensure his health and safety, in so far as that was reasonably practicable: s 19(1) of the Act. The offender was required to be proactive and to provide a structured system to control risks to workers that arose in the course of its business or undertaking.

75. The offender knew, as stated in the Manual, that its drivers, such as Mr Detroit, were exposed to risks during the loading and unloading of trucks at sites controlled by other PCBUs.

76. The offender also knew, as stated in the Manual, that on those occasions, its ability to eliminate or minimise the risk to the drivers was dependent on the safety systems of other PCBUs involved in the loading and unloading process, such as the persons responsible for operating mobile plant to load and unload trucks and the persons responsible for traffic management plans of the sites at which loading and unloading took place.

77. The offender provided information to the drivers on the need to:

1. Report to site reception.

2. Undertake a site induction.

3. Follow the policies and procedures discussed in the site induction.

4. Set up exclusion zones to eliminate or minimise the risk of an injury to a driver during the loading and unloading process.

78. Section 46 required the offender to systematically consult, co-operate and co-ordinate its activities with other persons who could control or influence the loading and unloading operations, so as to ensure that the risks posed to Mr Detroit were being eliminated or minimised, by ensuring that there was a site specific induction that he would be taken through and that exclusion zones were implemented and enforced during loading and unloading of trucks.

79. The offender received some safety information about the delivery to the Moorebank site, that was passed on to Mr Detroit, including the need to wear PPE and to report to Mr Rosic on arrival. However, the offender did not receive any information on which it could be confident that Mr Detroit would be trained on site specific procedures to eliminate or minimise the risk posed by loading and unloading.

80. The offender did not have in place any system to find out the policy and procedures that were in place at the locations where the truck was to be loaded or unloaded. This could have been achieved by simply sending an email to MFD Linehaul who engaged it, Force Fire as the consignee of the pipes, or Hansen Yuncken as the occupier of the delivery site, asking what control measures were in place at the relevant sites for loading and unloading the truck and finding out how those matters would be communicated to the driver. This would have permitted the offender to consider if there were risks posed to the health and safety of the driver. The failure to implement a system of consultation with the other PCBUs adversely impacted the offender’s ability to comply with its duty to Mr Detroit.

81. I have taken into account the maximum penalty for the offence.

Deterrence

82. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the 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 Ltd v Nash [2016] NSWCCA 37 at [180].

83. The s 46 obligation imposed on duty holders is a critical provision of the Act. The intention behind s 46 is to ensure that PCBUs provide for the safety of workers across the whole of the supply chain. The penalties imposed for a failure to comply with s 46 must signal to PBCUs the importance of this critical provision and that a failure to comply with it amounts to a serious breach of a PCBU’s safety obligations.

84. There is also a need for specific deterrence. The offender continues to operate an interstate transport operation where its drivers are required to load and unload trucks at third party sites. The offender has taken some steps to improve its systems after the incident, but those steps have some continuing issues and further work is required.

Aggravating factors

85. I am not satisfied that the aggravating factor provided for by s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 is established. The offender was not prosecuted for a breach of its s 19(1) duty. Accordingly, I have not decided if Mr Detroit was exposed to a risk of death or serious injury, or was killed, as a result of things it failed to do. The gravamen of the offender's plea of guilty is that the offender failed to take steps to put itself in the best position to protect Mr Detroit from known risks to his health and safety.

Mitigating factors

86. The offender did not have any significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Whilst the offender had a prior conviction for a WHS offence, it was for an offence of an entirely different character and is not particularly relevant.

87. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken steps to improve its safety systems after the incident and I am satisfied that the incident had a significant impact on Mr Arthur. I am satisfied that the offender has demonstrated that it has good prospects of rehabilitation.

88. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Through Mr Arthur, the offender has apologised and has accepted responsibilities for its breach of the Act. Mr Arthur assisted Mr Detroit’s family after the incident, and I accept that the remorse expressed by him was genuine.

89. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

90. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Penalty

91. Craig Arthur Pty Ltd is convicted.

92. The appropriate fine is one of $60,000 that will be reduced by 25% to reflect the plea of guilty.

93. I impose a fine of $45,000.

94. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

95. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Amendments

23 June 2023 - Correction of case name

23 June 2023 - Minor alternations to [83], [85] and [86]

Decision last updated: 23 June 2023