SafeWork NSW v Hibernian Contracting Pty Ltd

[2025] NSWIC 4

Industrial Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4

Hearing dates:

28 February 2025

Date of orders:

14 May 2025

Decision date:

14 May 2025

Before:

Paingakulam J

Decision:

(1) I impose a fine of $180,000.

(2) Hibernian Contracting Pty Ltd is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — category 2 — hot work — sparks from grinder mixed with oil to cause an explosion — no hot work permit system — mid-range of objective seriousness

SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — capacity to pay a fine — appropriate penalty

SENTENCING — mitigating factors — assistance to law enforcement authorities — principles

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

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

BW v The Queen [2011] NSWCCA 176

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MF v The King [2024] NSWCCA 42

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

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski [2009] NSWCCA 102

R v Cartwright (1989) 17 NSWLR 243

R v Fabrizio Calderoni [2000] NSWCCA 511

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32

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

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

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

R v XX [2017] NSWCCA 90

R v Youkhana [2004] NSWCCA 412

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

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

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Hibernian Contracting Pty Ltd (Defendant)

Representation:

Counsel:
P Gow (Prosecutor)
M Shume (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
JP Gould (Defendant)

File Number(s):

2024/292969

Publication restriction:

Nil

JUDGMENT

1. Hibernian Contracting Pty Ltd (Hibernian) was engaged by Camden Council (the Council) to redevelop the Council’s works depot in Narellan, New South Wales. On 12 August 2022, Mr Dustin Clifford, a labourer working for Hibernian, was using a grinder to cut through a pipe attached to an old waste oil tank. He suffered serious burns when the sparks from the grinder ignited oil in the waste oil tank, causing an explosion.

2. Hibernian appeared for sentence after pleading guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed Mr Clifford to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The risk particularised at paragraph 11 of Annexure A to the Amended Summons is as follows:

“The risk was the risk to workers, particularly Mr Clifford, suffering serious injury or death as a result of fire and/or explosion due to ignition sources, particularly, sparks produced from grinding work from an angle grinder (or heat produced by grinding work from the use of an angle grinder), being used around hazardous or flammable or combustible chemicals, liquids, substances or vapours (hazardous substances) on or in the Waste Oil Tank and its associated pipework (the risk).”

4. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843.05).

Facts

5. The prosecutor tendered an agreed Statement of Facts. I have taken this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offence to permit an understanding of the sentence imposed.

Background

6. Hibernian undertakes concrete paving services and a range of demolition and civil works. The sole director of Hibernian is Mr Martin Breen.

7. Hibernian was engaged by the Council to redevelop its works depot (the upgrade works), a seven-hectare site at 5 Millwood Avenue, Narellan, New South Wales (the site). There were 24 buildings on the site either to be demolished or redeveloped, and the Council continued to operate the depot during the upgrade works.

8. Hibernian subcontracted the supervision of the works to Bride View Civil Pty Ltd (Bride View). Bride View’s sole director, Mr Kevin O’Keeffe, assumed the role of site supervisor from about June 2022. Other workers at the site included leading hand carpenter and supervisor Mr Jamie Beresford, form worker and concreter Mr David Breen, and labourers Mr John (JJ) Flannigan and Mr Declan Quinn. Mr Beresford and Mr David Breen were employed by Kingdom Group Pty Ltd (Kingdom). Mr Martin Breen was the sole director of Kingdom.

Injured worker

9. Mr Clifford was a labourer who had worked for Hibernian since approximately 2019.

Works at site

10. Hibernian commenced the upgrade works in or around June 2021. The original scope of the upgrade works did not involve demolition, decommissioning or dismantling of any waste oil tanks.

11. The work on site involved dismantling a workshop located on top of a concrete pit which was just over two metres deep (the Pit). The work also involved emptying the contents of the Pit, which was to be filled in afterwards to make way for a new concrete pavement entrance to a weighbridge which was part of the upgrade works at the site.

12. Located in the south-eastern corner, at the base of the Pit, was an unlabelled waste oil tank which had previously been used to store oil from vehicles that had been serviced at the site (Waste Oil Tank). Alongside the Waste Oil Tank were various other drums and tanks both inside and outside of the Pit. Some were labelled “oil” and “Valvoline”, and some contained cautionary labelling such as “AutoSmart Caution Plus 10 Heavy Duty Degreaser Flammable Liquid 3”.

13. During the tender process, the Council had provided Hibernian with a Construction Environmental Management Plan (CEMP) for the site which had been prepared by iEnvironmental Australia on 19 November 2019. The CEMP identified the presence of various oil drums and tanks in and around the Pit, together with their contents.

14. Mr John Smith, the workshop supervisor at the Council, emptied all of the products out of the tanks other than the Waste Oil Tank about four weeks before the incident. At least one week prior to the incident, Mr Smith told Mr O’Keeffe and Mr Breen that all tanks in the Pit had been emptied by the Council except the Waste Oil Tank.

15. About a week before the incident, Hibernian fenced off the area where works were occurring, including the Pit. In an email dated 11 August 2022, Hibernian advised the Council that the workshop area would be deconstructed in the same manner that it was constructed, which excluded hot work.

16. On or around 13 August 2022, workers began the process of dismantling the Pit. Mr Smith asked Mr O’Keeffe if Hibernian’s employees could assist in removing tanks from the Pit. In the days before the incident, Hibernian’s employees used grinders in the Pit to remove hydraulic rams, other tanks and metal covering the Pit.

The incident

17. On 17 August 2022, there were at least five workers on site, including Mr Clifford, Mr David Breen, Mr Beresford, Mr Flanagan and Mr O’Keeffe. A pre-work meeting was held where the workers were given tasks that were a continuation of what they had been doing over the previous few days. Such tasks related to cleaning up and sorting materials into various bins.

18. The removal of the Waste Oil Tank was not an allocated task. However, on the morning of the incident, Hibernian’s workers lifted two other tanks from the Pit.

19. Mr Clifford started work at around 7:00am on the day of the incident. At approximately 8:00am, he entered the Pit and began clearing and sorting materials into various skip bins and conducting general clean up tasks from the previous days’ work. After exiting the Pit for a short break at around 10:00am, Mr Clifford obtained an angle grinder from the tool bin and re-entered the Pit alone. He did not communicate to any other worker that he was going to do any work on the Waste Oil Tank.

20. At approximately 11:15am, Mr Clifford used the angle grinder to cut through a thin horizontal pipe connected to the Waste Oil Tank so it could be lifted straight out. As he was cutting the pipe, an explosion occurred and a flame approximately 10 metres high engulfed the Pit and Mr Clifford. Mr Clifford extricated himself from the Pit before being provided first aid by other workers, including Mr Quinn and Mr O’Keeffe.

21. SafeWork Inspectors who attended the site on the day of the incident observed that the side of the Waste Oil Tank was ruptured and that it contained a dark liquid which also covered the ground surface of the Pit. Subsequent testing of samples of the black liquid confirmed that it contained Category 2 and 3 hazardous chemicals using the Globally Harmonised System of Classification and Labelling of Chemicals.

Injuries

22. Emergency services were called to the site. Mr Clifford was assessed by attending emergency services personnel, who placed him into an induced coma at the site before he was airlifted to Royal North Shore Hospital.

23. As a result of the incident, Mr Clifford sustained 15% mixed dermal oil burns to his face, abdomen, upper and lower back and both upper limbs. Whilst in hospital, Mr Clifford underwent two skin grafts. He was discharged from hospital 12 days later, on 29 August 2022.

Legal obligations and guidance material

24. The work carried out by Hibernian was “high risk construction work” within the meaning of cl 291(l) of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). As such, Hibernian was required to prepare a Safe Work Method Statement (SWMS) for the work. The SWMS had to identify the work that was high risk construction work, specify the hazard relating to the work and the risks to health and safety associated with those hazards, describe the measures to be implemented to control the risks and describe how the control measures were to be implemented, monitored and reviewed: WHS Regulation cl 299(2)(a)–(d).

25. There was also a significant amount of relevant guidance material available to Hibernian. The Safe Work NSW Code of Practice “Managing the Risks of Hazardous Chemicals in the Workplace” (August 2019) (Hazardous Chemicals Code of Practice) applies to substances defined as “hazardous chemicals” by the WHS Regulation. The Hazardous Chemicals Code of Practice was available to Hibernian. The Hazardous Chemicals Code of Practice relevantly provides:

1. Where the contents of a container are not known, the container should be isolated and clearly marked as an unknown substance until such time as the contents are identified (p 19).

2. While the WHS Regulation does not require a risk assessment, it may be best practice to conduct one, and a detailed risk assessment might be needed where there is a significant risk to health (p 21).

3. Physical risks may arise where hazardous chemicals (that are flammable) come into contact with ignition sources. Petroleum-based oils are a common example of a flammable or combustible liquid (p 27).

4. A person conducting a business or undertaking (PCBU) must identify an ignition source in the workplace that has the potential to ignite flammable or combustible material. Sparks from grinding is an example of an ignition source (p 29).

5. The effects of an explosion can be exacerbated when the fuel and air mixture is contained, for example, in a tank or pipework. Explosions can be more violent than when unconfined and flying debris can cause serious injuries or death (p 30).

6. If there is a possibility of fire or explosion in a “hazardous area” (defined in cl 5(1) of the WHS Regulation) due to the introduction of an ignition source, a PCBU must ensure that the ignition source is not introduced to the area: (p 40, referring to cl 355 of the WHS Regulation).

7. Hot work, which includes grinding and undertaking such work in areas where flammable or combustible chemicals are present, creates a significant risk of fire or explosion. Conducting hot work on containers such as drums or tanks that have not been properly decontaminated is a common ignition scenario resulting in fatalities. A hot work permit system is a system designed to eliminate or minimise risks associated with hot work (p 41).

8. Hazardous areas generally exist around flammable or combustible materials, for example, those present in tanks or drums (p 42).

9. Fuels and oils are identified as fire and explosion hazards in the automotive industry, particularly with regard to motor mechanic work (i.e., the Pit) (p 86).

26. Also relevant was the SafeWork NSW Code of Practice: Welding Processes dated August 2019 (Welding Processes Code of Practice). The Welding Processes Code of Practice relevantly provides at p 21 that grinding can generate heat, flames and sparks which are considered ignition sources in hazardous atmospheres and that common sources of fuel found in workplaces include flammable and combustible materials, such as oils.

27. The Australian Standard 1674.1 – 1997 Safety in Welding and Allied Processes (Welding Standard) specifies precautions to be taken prior to and during hot work to prevent the possibility of fire or explosion as follows:

1. Hot work should be carried out under the control of a person responsible for the safe execution of all operations who should ensure the hazards of the location are identified and there is no inherent hazard due to the nature of the item on which the hot work is to be performed.

2. Prior to performing any hot work, precautions should be taken to prevent any fire, explosion or injury, including testing for the presence of any flammable gas or flammable vapour within 15 metres of the hot work or drum, tank or vessel involved in the hot work, and ensure the concentration of any flammable gas or flammable vapour is less than 5% of its lower explosion limit.

3. Gas and vapour detectors used should comply with the relevant Australian Standard.

4. Once satisfied that the hot work can safely proceed, the responsible person is to issue a hot work permit that complies with the Welding Standard.

5. Piping and tanks on which hot work is to be undertaken should be thoroughly cleaned and treated before hot work begins.

6. Sight and smell are not reliable indicators of whether it is safe to carry out hot work on a closed container because a very small amount of residual vapour can cause an explosion.

Systems of work prior to the incident

28. At the time of the incident, Hibernian had in place the following systems of work:

1. A Daily Pre-Start Hazard Assessment Checklist, which was signed by workers including Mr Clifford on the date of the incident. This checklist failed to identify hazards from ignition sources, hazardous areas, hazardous atmospheres or the implementation of controls for hot work, such as the use of angle grinders.

2. A Work Health & Safety Management Plan (WHS Plan) which noted that workers carrying out hot work would have a fire extinguisher close by, and evidence of workers being fully trained in the use of fire extinguishers would be available. The WHS Plan prohibited workers from carrying out hot work unless they had the appropriate training and certifications, but failed to identify the risk of a fire or explosion due to ignition sources being used near hazardous chemicals that were present at the site.

3. A site induction attendance record. However, induction records failed to identify the site-specific hazardous chemicals, hazardous areas, hazardous atmospheres or ignition sources for hazardous chemicals. Mr Clifford had not been trained in regard to the specific hazards associated with the site.

4. A site-specific SWMS for Demolition at Camden Council Depot dated 11 May 2021, which was signed by workers including Mr Clifford, on 1 June 2021. The SWMS failed to identify high-risk construction work such as work carried out in a contaminated or flammable atmosphere, or the site-specific hazard of hot work carried out in that context. The SWMS therefore did not address risks to health and safety associated with those hazards, or measures that could be implemented to control such risks.

5. A refresher SWMS for Demolition Work (Refresher SWMS), which was signed by workers, including Mr Clifford, on 12 August 2022. This refresher SWMS was not site-specific but did address works conducted in areas that may have a “contaminated or flammable atmosphere” and suggested that all areas of the workplace should be examined to determine whether there were any items which could be a fire or explosion risk, or if there was any toxic or other hazardous material present. It also required that all hazardous materials be clearly identified. The Pit was not examined for flammable or other hazardous substances prior to the incident as required by the Refresher SWMS. The Refresher SWMS identified 15 different types of high-risk construction work, but the applicable types of works identified did not relate to the work in the Pit or the Waste Oil Tank. Further relevant hazards identified in the SWMS were not marked as being present.

6. Toolbox Talks. However, at the time of the incident, a Toolbox Talk had not occurred at the site for several months. One worker had not participated in a Toolbox Talk since starting work at the site.

29. Notably, Hibernian had no hot work permit system in place at the time of the incident, and workers were able to freely access hot tools to conduct work at the site. In addition, although Hibernian was provided with a copy of the CEMP by the Council, Mr O’Keeffe had not reviewed it prior to the incident occurring, despite being aware of its existence. The CEMP identified the existence of various waste oils, chemicals and fuels in the Pit prior to the works commencing, and Hibernian failed to determine whether this created a hazardous area.

Systems of work after the incident

30. Following the incident, SafeWork NSW issued several statutory notices to Hibernian. In complying with these notices, Hibernian:

1. updated its WHS Plan to include provisions for hot work, monthly WHS inspections and the implementation of site-specific risk assessment measures;

2. engaged an external contractor to remove the remaining tanks and barrels and clean up the floor of the Pit;

3. introduced a hot work permit system for workers at the site;

4. updated the SWMS for Project Camden Council Depot to address high-risk demolition work, ignition sources in hazardous areas and hazardous atmospheres, spills and leaks of hazardous or flammable chemicals, falls from heights, housekeeping, unauthorised access to areas at the site, the provision of designated entry and exit point signage, an emergency plan and temporary handrails; and

5. introduced a Waste Oil Tank Policy, which identified that hot work such as grinding or welding presented a risk as flammable vapours and gases that come into contact with ignition sources can cause fire or explosions.

Offender’s case on sentence

31. Hibernian read and relied on the affidavit of Mr Martin Breen sworn 17 February 2025. The following is a summary of his evidence, in addition to matters already set out in the agreed Statement of Facts.

32. Mr Breen is a permanent resident of Australia, having migrated from the Republic of Ireland in 2008. He is 40 years of age and lives with his wife, who works part-time in the skin care industry, and their three children. He has worked in the building industry for 22 years.

Expression of remorse and contrition

33. Mr Breen apologised that the failures of the defendant led to the injuries suffered by Mr Clifford. He stated that he has always taken work health and safety seriously, which was demonstrated by the fact that neither he nor Hibernian had previously been involved in a workplace injury.

34. As soon as he was informed of the incident, Mr Breen rushed to the scene and ensured that Mr Clifford was receiving medical assistance. He ensured emergency protocols were followed, including the calling of the ambulance, police and fire brigade. He also called SafeWork NSW and ensured he and his staff assisted these bodies as requested.

35. Mr Breen visited Mr Clifford in hospital and offered him ongoing support regarding returning to work and lodging a Workers Compensation claim. He also lent Mr Clifford a truck to assist him in renovating his wife’s wellness studio. Mr Clifford has been cleared to return to full-time work.

36. Additionally, the workers who witnessed the incident were offered counselling and support services, including post-incident debriefing and additional toolbox meetings and training.

About Hibernian

37. Hibernian was incorporated on 28 May 2013, and almost exclusively services New South Wales Local Government Councils. As at 17 February 2025, Hibernian employed between three and five staff including contractors engaged from time to time. At the time of the incident, Hibernian employed up to 10 people, including contractors. Furthermore, at the time of the incident, Hibernian had done only 30–40 hours of demolition work after 14 months at the site. Demolition was therefore only “a fraction” of the work undertaken by Hibernian.

38. Hibernian had been taking active steps to manage safety as part of the demolition process, including placing red and white “danger” tape around the perimeter of the Pit to address the risk of workers falling into it. It did not occur to Mr Breen that the area may have a flammable atmosphere, because the Council had been using it as a workshop with the tanks in place for many years.

39. Most of the work ordinarily performed by Hibernian involved formwork, steel reinforcement and concreting of pavements. That work required the use of grinders and, in Mr Breen’s experience, did not typically require a hot work permit.

40. Hibernian has made modest donations to various sporting clubs and community events, including the St Pats Football Club, Sydney Shamrock Hurling Club and the St Patrick’s Day Parade.

The circumstances surrounding the incident

41. Mr Breen was not aware that Hibernian was involved in removing tanks from the Pit. Had he known, he said he would have required a risk assessment to be completed, and he would have prohibited the use of the grinder on the Waste Oil Tank. Further, he would not have agreed to do that work without a significant and formal variation to the contract with the Council.

42. Mr O’Keeffe was selected by Hibernian as site supervisor based on his representation that Bride View had nine years of supervisory experience and he personally had more than 15 years of supervisory experience, including for multiple crews on multimillion-dollar projects. He held a number of certified qualifications and had workplace health and safety experience.

43. After the incident, Mr Breen became aware that Council employee Mr John Smith had been tasked with removing the tanks from the Pit and had approached Mr O’Keeffe to seek assistance from Hibernian’s workers. In that context, two tanks had been lifted out of the Pit by using an excavator. Mr O’Keeffe had a suite of specialist lifting equipment available for use at the site.

44. None of Hibernian’s workers had been tasked to enter the Pit on the day of the incident. No one was aware that Mr Clifford was working on the Waste Oil Tank until the explosion occurred.

45. Workers on site were required to attend both a site-specific induction conducted by the Council and one conducted by Hibernian. The site-specific induction conducted by Hibernian did not cover hazards arising from undertaking hot work because it was not within the scope of the project. While it had been some time since a Toolbox Talk had been conducted, Mr Breen had spoken to workers individually about a safety matter that had arisen only the week before the incident.

After the incident

46. The incident has had a “profound personal and professional impact” on Mr Breen. He has upgraded Hibernian’s safety systems, which are now digitalised and streamlined. Hibernian engages the Master Builders’ Association NSW’s (MBA NSW) Safety Department to conduct independent safety inspections alongside its own. It now has a Project Management Plan format which integrates work health and safety, environmental and quality management plans. Hibernian also routinely engages independent environmental specialists to conduct hazard and waste classification assessments, in addition to any client-provided reports, before mobilising on site. Staff training has been enhanced to address site-specific high-risk activities.

47. As Hibernian derives most of its construction work from local councils, does not advertise and relies entirely on references obtained from completed projects, the incident has seen business decrease. Competition is high for tenders, the cost of labour and materials has significantly increased, and interest rates and inflation have caused a downturn in the market.

48. After the incident, Mr Breen and his brother Damien commenced an MBA NSW course “WHS for Supervisors”, which they were part-way through as of 17 February 2025.

49. Mr Breen has limited the amount of people who work for Hibernian so as to ensure greater oversight and is “much more hands-on” with work since the incident, ensuring that either himself or his brother is on site providing direct supervision at all times. As a result, Hibernian can undertake only one project at a time. This has led to gaps between projects which has had financial repercussions for both his and his brother’s families.

Consideration

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

51. I have taken into account the maximum penalty for this offence: Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Makarian).

Objective seriousness

52. 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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

53. This task requires the Court to consider where the conduct of Hibernian falls in the range of conduct covered by the offence: Baumer v the Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):

“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.”

54. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

55. 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].

56. 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) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively.

57. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Makarian at [51].

58. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:

“[34] The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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.”

59. 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 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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

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

61. SafeWork NSW submitted that this offence falls within the mid-range of objective seriousness having regard to the following factors which it asked the Court to take into account in making its assessment:

1. Hibernian’s experience in the demolition business.

2. Hibernian’s awareness of the presence of flammable liquid in the Pit, both because it had been provided with a copy of the CEMP and because the presence of the tanks and drums was obvious and some of them displayed oil labels and flammable liquid warnings.

3. The express warning which Mr Smith gave Mr O’Keeffe and Mr Breen about a week before the incident that the Waste Oil Tank had not been emptied (in the context of the Welding Standard, which provides that a very small amount of residual vapour can cause an explosion even where a tank is empty).

4. The requirement in cl 291(I) of the WHS Regulation for Hibernian to develop a site-specific SWMS for work undertaken in an area which may have a flammable atmosphere, which it failed to do, and the absence of the relevant risk in either of the SWMS prepared by Hibernian.

5. While the removal of the Waste Oil Tank and other tanks was not originally part of the works, Hibernian agreed to assist to remove them, and a cursory inspection by anyone in authority for Hibernian would have established that the horizontal steel pipe needed to be removed in order to lift the Waste Oil Tank out of the Pit.

6. In using an angle grinder to sever that pipe, Mr Clifford was continuing the duties he had been performing in previous days clearing the Pit, including use of an angle grinder as required, and Hibernian would have been aware of his intention to use a grinder on the Waste Oil Tank if it had had a hot work permit system in operation.

7. Fires and explosions are well known to be unforgiving and there was extensive guidance material available to put Hibernian on notice of the risks and manner in which they may be controlled, including the Hazardous Chemicals Code of Practice, the Welding Processes Code of Practice and the Welding Standard.

8. Hibernian failed to consider what was a reasonably foreseeable risk in circumstances where it was on notice of the presence and contents of the various drums, including the Waste Oil Tank.

9. The risk of serious injury or death was not remote.

10. Undertaking an adequate risk assessment (or requiring the Council to do so) was a reasonably practicable measure that Hibernian could and should have taken.

11. Additional reasonably practicable measures that Hibernian could and should have taken included a prohibition against hot work being carried out, the implementation of a hot work permit system, prohibiting work without adequate information, and the provision of instruction and training, adequate supervision and appropriate personal protective equipment (PPE) to workers.

12. The above steps which, if taken, would have eliminated or at least minimised the risk, were feasible, straightforward and inexpensive.

62. Hibernian submitted that the objective seriousness of the offence was low because the scope of the agreement between itself and the Council was for Hibernian to assist the Council to remove (i.e., lift out) the Waste Oil Tank from the Pit. That agreement, made between the Council and Mr O’Keeffe, occurred in circumstances where Mr O’Keeffe brought specialist lifting equipment which was therefore available for use on site. Hibernian contended that the agreement to assist the Council to remove the Waste Oil Tank from the Pit did not extend to demolition work to facilitate that process and there was no agreement as to when or how the Waste Oil Tank was to be removed. Accordingly, Hibernian’s position was that the risk which ultimately materialised was not foreseeable in circumstances where it was beyond Hibernian’s scope of work.

63. Hibernian further submitted that the absence of any systems in place to manage the risk associated with undertaking hot work in a flammable atmosphere ought to be viewed in the context of the work giving rise to that risk being outside Hibernian’s scope of work. In support of that submission, Hibernian pointed to the absence of any direction from Hibernian to Mr Clifford to sever the pipe, Hibernian’s lack of awareness that Mr Clifford was undertaking that task, and the absence of risk to any of Hibernian’s other workers.

64. I accept Mr Breen’s evidence that he was unaware that Hibernian had agreed to assist in removing the tanks, including the Waste Oil Tank, from the Pit. I also accept that, had he been aware of that agreement, he would have required a further risk assessment to be done and that the introduction of hot work as part of the demolition process would have required a significant variation in the contract between Hibernian and the Council.

65. However, I do not accept that the hot work undertaken by Mr Clifford was beyond Hibernian’s scope of work as varied by Mr O’Keeffe in the days before the incident. The agreed Statement of Facts provides that Mr Smith asked Mr O’Keeffe “whether his employees could assist to remove the tanks”. It must have been obvious to Mr O’Keeffe, when he agreed to assist the Council to remove the tanks from the Pit, that the Waste Oil Tank was unable to be lifted out unless the pipe to which it was connected was severed.

66. Further, the agreed Statement of Facts also provides that in the days leading up to the incident, workers had been using grinders in the Pit to remove hydraulic rams, other tanks and metal covering the Pit. While there is no allegation that the earlier use of grinders in the Pit was unsafe, its occurrence demonstrates that Hibernian’s workers were accustomed to engaging in hot work as required to perform the task at hand. In addition, the need to sever the pipe in order to remove the Waste Oil Tank was obvious.

67. I do not place any weight on the fact that removal of the Waste Oil Tank was not a task that was specifically allocated during the pre-work meeting on the day of the incident. The agreed Statement of Facts provides that “[t]he jobs allocated related to cleaning up and sorting material into various bins.” Yet two other tanks had been removed on the morning in question, prior to the incident occurring. I accept that the removal of those tanks was confined to lifting them out of the Pit with an excavator. No one was required to enter the Pit. However, it is clear that Hibernian’s workers had turned their attention to removing tanks from the Pit on the morning of 17 August 2022, notwithstanding what occurred at the pre-work meeting.

68. As the person supervising the work undertaken by Hibernian on that day, Mr O’Keeffe would or should have known that Hibernian’s workers had been lifting tanks out of the Pit that morning. He would or should have known that the Waste Oil Tank was not empty, because he had been informed of this when Hibernian commenced demolition of the workshop above the Pit. In addition, Mr O’Keeffe would or should have known that Hibernian’s workers had been using grinders in the Pit as required in previous days. Further, the risk posed to a worker such as Mr Clifford whilst using an angle grinder in the presence of flammable materials was obvious and well-known to Hibernian and the industry. The likelihood of the risk materialising was high given the residual hazardous chemicals in the Waste Oil Tank.

69. By its plea of guilty, Hibernian accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

1. On agreeing to remove the Waste Oil Tank, undertaken a risk assessment of the site that considered the site-specific hazards, including a consideration of work on or near the Waste Oil Tank.

2. Required the Council to undertake a risk assessment in relation to the demolition, decommissioning and dismantling works involving the Waste Oil Tank, which included testing for hazardous substances or the scientific analysis of its contents to determine whether any hazardous substances were present, and providing this information to Hibernian in writing, prior to seeking Hibernian’s assistance to remove the Waste Oil Tank.

3. Developed, implemented and enforced a SWMS (or required the Council to do so) that identified the hazards of fire and explosion due to ignition sources associated with the demolition, decommissioning and dismantling works involving the Waste Oil Tank and described the measures to control it, such as vapour testing for hazardous substances and scientific analysis of its content, and to control the risks associated with grinding work on or near the Waste Oil Tank.

4. Prohibited hot work from being carried out in areas that may contain or be affected by hazardous substances, and in particular, the use of an angle grinder to cut the pipe connected to the Waste Oil Tank.

5. Developed, implemented and enforced a hot work permit system at the site where only appropriately authorised workers were permitted to use tools such as angle grinders, in particular, in circumstances such as cutting (by grinding) the pipe connected to the Waste Oil Tank.

1. Prohibited workers from performing any work in the vicinity of hazardous substances without such workers receiving prior adequate information, instruction and training specific to working in that environment or, if that was not reasonably practicable, without direct supervision by a competent and experienced supervisor with training in the safe use and handling of hazardous substances.

2. On agreeing to remove the Waste Oil Tank, required Mr Clifford to wear adequate nonflammable PPE.

3. On agreeing to remove the Waste Oil Tank, provided workers, and in particular Mr Clifford, with appropriate instruction, information and training before commencing any hot work.

4. Provided adequate supervision to workers to prevent both access to unauthorised areas and unauthorised hot work from being performed at the site, particularly in areas such as the Pit.

70. The above measures both individually and in combination could have been implemented without great burden or inconvenience to Hibernian. Hibernian submitted that, even with the benefit of hindsight, many (but not all) of the measures could not, of themselves, eliminate or minimise the risk so far as is reasonably practicable. Rather, they formed a suite of measures required to achieve that result. While I accept that submission, little turns on it in circumstances where measures such as the conduct of a risk assessment, the development and implementation of a SWMS which identifies measures to attempt to manage the risks identified and the adequate supervision of workers deployed in a high-risk environment are measures routinely employed on construction and demolition sites.

71. The potential consequences of the risk materialising included death. The serious injuries suffered by Mr Clifford were a manifestation of the risk.

72. Taking the above matters into account in the manner indicated, I find that the objective seriousness of the offence falls within the mid-range.

Moral culpability of Hibernian

73. The absence of appropriate systems was due, in large part, to a breakdown in communication within Hibernian so that Mr Breen was unaware of the nature of the work being undertaken by Hibernian’s workers at the site. While I accept that Hibernian’s agreement to remove the tanks from the Pit occurred in the context of the specialist lifting equipment that Mr O’Keeffe had at his disposal, the fact remains that hot work had been undertaken to remove fixed items from the Pit in the days preceding the incident. Given that context, Hibernian should have ensured that appropriate systems were in place when it came to the removal of the Waste Oil Tank, because Mr Smith had told Mr Breen and Mr O’Keeffe that the Waste Oil Tank had not been emptied. The removal of two tanks from the Pit by Hibernian’s workers on the morning of the incident should have alerted Mr O’Keeffe to the fact that the removal of the Waste Oil Tank was imminent.

74. Mr O’Keeffe was an experienced site supervisor. He had 20 years’ experience in the utilities and civil industry. He had experience supervising multiple crews on multimillion-dollar projects. He was also the holder of several construction related qualifications, licences and tickets. Accordingly, I accept that Hibernian had exercised a degree of diligence to put appropriate supervision in place when it engaged Mr O’Keeffe and relied upon him as the supervisor for the daily activities of its workers at the site. While that is not a matter which has a direct bearing upon the objective seriousness of the offence, it is a matter which reduces Hibernian’s moral culpability in relation to the offence: MF v The King [2024] NSWCCA 42 at [81].

Deterrence

75. The penalty imposed in relation to this offence must provide for general deterrence.

76. I accept that, at the time of the incident, Hibernian, through the efforts of Mr Breen, was a company which paid high regard to its WHS Act responsibilities. This is reflected in both Hibernian’s absence of prior convictions over several years and the measures taken by Hibernian to secure the workshop demolition site and the Pit. Accordingly, I find that there is a reduced need for the sentence imposed upon Hibernian to provide specific deterrence. I am fortified in that view by the measures taken by Mr Breen since the incident to update and integrate Hibernian’s site management plans, engage additional expert assessments and ensure that either he or his brother performs site supervision on Hibernian’s projects with the benefit of the additional MBA NSW training that they are each undertaking.   

Aggravating factors

77. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].

78. I have considered the Victim Impact Statement of Mr Dustin Clifford, dated 9 February 2025. The photographs annexed to that statement show permanent scarring to Mr Clifford’s forearms, face, leg and back. Mr Clifford states that he covers the scars with clothing to the extent possible and that the skin grafts have left him unable to regulate his body temperature. The injuries which he suffered during the incident have resulted in significant “functional restriction”, in addition to ongoing anxiety and emotional distress. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Clifford are sufficient to establish the aggravating factor.

Mitigating factors

79. Hibernian has no prior convictions: s 21A(3)(e) CSP Act.

80. Hibernian is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Further, Hibernian has been operating since 28 May 2013, a period of more than nine years without any prior convictions at the time of the incident.

81. Mr Breen gave unchallenged evidence about the “profound” effect of the incident upon his mental health. Because of this, alongside his increased personal oversight of Hibernian’s projects together with Mr Damien Breen, and with the benefit of their additional training and the enhanced site-specific safety training provided to workers, the updating and integration of Hibernian’s site management plans and the routine engagement of external expertise to manage site safety, I find that the offender is unlikely to reoffend (s 21A(3)(g) CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) CSP Act).

82. Hibernian has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that its failures led to the injury of Mr Clifford.

83. Hibernian entered a plea of guilty on 16 December 2024 to the charge particularised in an amended summons of that date. The plea of guilty was entered at the second mention of proceedings commenced on 9 August 2024. Hibernian is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. The prosecutor did not take issue with the defendant’s submission that it should be afforded a discount on sentence of 25% in recognition of its early guilty plea. I accept that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

84. Hibernian submits that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it: s 21A(3)(m) CSP Act. The prosecutor does not dispute that Hibernian cooperated with the SafeWork NSW investigation, but submits that complying with improvement notices, prohibition notices and providing information under s 155(2) of the WHS Act are matters required by law which ought not to attract a sentencing discount. The prosecutor notes the absence of evidence as to what Hibernian relies upon by way of assistance to the authorities.

85. Section 21A(3)(m) CSP Act provides as follows:

21A Aggravating, mitigating and other factors in sentencing

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(m) assistance by the offender to law enforcement authorities (as provided by section 23),

86. Section 23 CSP Act provides as follows:

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

87. The operation of s 23 CSP Act was considered in detail by Beech-Jones J in R v XX [2017] NSWCCA 90. His Honour made the following relevant observations in his assessment of the terms of that provision at [30]–[32]:

1. Section 23(1) confers a discretion and not an obligation on a sentencing judge to proffer a discount when assistance has been provided;

2. The assistance referred to in s 23(1) is not defined and there is nothing in the section that limits the type of assistance which falls within the provision beyond requiring that it be assistance to “law enforcement authorities” in the “prevention, detection or investigation, or in proceedings relating to” an offence; and

3. Section 23(2) is not an exhaustive list of the factors that can be considered but the considerations listed there ought to be “at the forefront of the decision-maker’s consideration”. [1]

   1. Citing Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [215]–[216]; see R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32 at 329.

88. Justice Beech-Jones then undertook an analysis of the historical context of the provision and relevant extrinsic materials. That exercise led his Honour to the conclude, at [53], that a relatively expansive view of the meaning of assistance should be adopted. His Honour also noted, at [54], that the rationale for the enactment of s 23(1) was that stated in R vCartwright (1989) 17 NSWLR 243, namely “the ‘public interest’ in encouraging offenders to supply information to the authorities which will assist them to bring other offenders to justice and to provide evidence” and that this was subject to the constraint provided by s 23(3) that the resulting sentence not be “unreasonably disproportionate to the nature and circumstances of the offence”.

89. In applying these principles to the investigation of offences pursuant to the WHS Act, I note the following matters:

1. The provision of assistance, even when provided in response to a regulatory notice, may be variable in its completeness and reliability (noting that the provision of untruthful information is a matter that would attract a criminal sanction).

2. Assistance provided by an offender which is limited to bare compliance with a regulatory notice, the absence of which would render the offender liable to prosecution, is not a matter that would ordinarily attract a discount on sentence.

3. Assistance provided by an offender who takes proactive steps in response to a regulatory notice, and embraces the opportunity which it presents, should not be viewed as favourably as assistance which is entirely voluntary (but can be contrasted with unwitting assistance which has been construed to fall outside s 23(1) [2] ).

4. The time and financial commitment required by an offender to comply with regulatory demands (for example, where multiple notices are served on a corporate offender and its officers) is a relevant consideration.

5. The ease with which an offender is able to implement remedial measures in response to an improvement notice served upon it assists the prosecution to prove the reasonably practicable nature of such measures in any subsequent prosecution.

6. The timeliness of compliance with regulatory requirements benefits the prosecution in the context of a statutory limitation period for the bringing of proceedings for an offence pursuant to the WHS Act.

   2. R v Fabrizio Calderoni [2000] NSWCCA 511 at [9] per Sully J with whom Bell and Whealy JJ agreed.

90. The agreed Statement of Facts records that Hibernian complied with several statutory notices, and in so doing, updated its WHS Plan, engaged the services of an external contractor to empty and clean up the floor of the Pit, introduced a hot work permit system at the site, updated its SWMS for the site to address a number of stated risks not confined to matters relevant to the incident and introduced a Waste Oil Tank policy. Mr Breen gave evidence that he answered all questions posed by police and SafeWork NSW at the time of the incident and ensured that his staff also assisted as requested. He further stated that he and his staff had cooperated with SafeWork NSW wherever possible and will do so in the future.

91. I am satisfied on the balance of probabilities that Hibernian cooperated with law enforcement authorities sufficiently to attract the benefit of this mitigating factor.

Capacity to pay a fine

92. Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of Hibernian before imposing a fine. An offender that seeks to have a fine reduced on the basis of limited capacity to pay bears the evidentiary onus of convincing the Court that it should limit the amount of the fine. Hibernian’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 due to the seriousness of the offence and the need for general deterrence.

93. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance.

94. Mr Breen gave evidence that the weekly salary which he draws from Hibernian approximately equates with his weekly expenses. However, there was no evidence before the Court concerning the financial position of Hibernian and no submission was made that Hibernian had a reduced capacity to pay a fine. I nonetheless take into account the size and scope of Hibernian.

Penalty

95. Hibernian Contracting Pty Ltd was convicted pursuant to an order that I made on 28 February 2025.

96. The appropriate fine is $240,000, which will be reduced by 25% to reflect the plea of guilty.

97. I make the following orders:

1. I impose a fine of $180,000.

2. Hibernian Contracting Pty Ltd is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Endnotes

Decision last updated: 14 May 2025