SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited

[2020] NSWDC 597

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited [2020] NSWDC 597

Hearing dates:

2 October 2020

Date of orders:

2 October 2020

Decision date:

09 October 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

Penalty for Lendlease Engineering Pty Limited (2019/158579):

(1)   Lendlease Engineering Pty Limited was convicted on 2 October 2020.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Lendlease Engineering Pty Limited to pay a fine of $375,000.

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

(5)   Order Lendlease Engineering Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

Penalty for Bouygues Construction Australia Pty Limited (2019/158619):

(1)   Bouygues Construction Australia Pty Limited was convicted on 2 October 2020.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Bouygues Construction Australia Pty Limited to pay a fine of $375,000.

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

(5)   Order Bouygues Construction Australia Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

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 – worker was undertaking the task of desludging flow balance tanks – worker suffered fatal crush injuries after a sudden release of stored energy in a pressurised piping system being used to pump waste water and sediment from the construction of an underground tunnel to tanks on the surface – absence of a Safety in Design process – failure to provide a system that minimised uncontrolled release of energy – failure to provide adequate welds attached to the pipe support structure – failure to implement and enforce a Safe Work Method Statement for desludging the flow balance tanks – inadequate provision of information, instruction and training to workers

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Occupational Health & Safety Act 1983 (NSW), ss 8, 15,16

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

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

WorkCover Authority (Inspector Howard) v BaulderstoneHornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

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

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

Australian Standard 4343:2014, Pressure Equipment – Hazard Levels

Australian Standard 4041–2006, Pressure Piping

Australian Standard 1554.1:2014, Structural steel welding – Welding of steel structures

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Lendlease Engineering Pty Limited (Defendant)
Bouygues Construction Australia Pty Limited (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
B Hodgkinson SC (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Ashurst Australia (Defendant)

File Number(s):

2019/158579
2019/158619

Judgment

1. Lendlease Engineering Pty Limited (Lendlease) entered into a Joint Venture deed with Bouygues Construction Australia Pty Limited (Bouygues) for construction of the NorthConnex Project. On 23 May 2017, Mr James Adams – a tunneller working on the NorthConnex Project – suffered serious injury and died as a result of being struck by components of a pressurised piping system. This was caused by the uncontrolled release of stored energy.

2. Lendlease 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 Act) it failed to comply with that duty and thereby exposed Mr James Adams to a risk of death or serious injury contrary to s 32 of the Act.

3. Bouygues 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 it failed to comply with that duty and thereby exposed Mr James Adams to a risk of death or serious injury contrary to s 32 of the Act.

4. The maximum penalty for each offence is a fine of $1,500,000.

Background

5. The parties presented an Agreed Statement of Facts and this material is summarised below.

6. Lendlease was a subsidiary of Lendlease Corporation Limited, an international property and infrastructure group.

7. Bouygues was a subsidiary of the Bouygues Group, an international construction and engineering company.

8. The Joint Venture between Lendlease and Bouygues (Joint Venture) involved the design, construction and commissioning of a tolled motorway linking the M1 Pacific Motorway at Wahroonga to the Hills M2 Motorway at West Pennant Hills by a tunnel (NorthConnex Project).

9. On 31 January 2015, Lendlease and Bouygues entered into a Joint Venture deed for the NorthConnex Project making both businesses jointly responsible for the works carried out in the performance and completion of the NorthConnex Project. Pursuant to the terms of the Joint Venture deed, Lendlease was appointed as the Principal Contractor.

10. As part of the NorthConnex Project, Lendlease and Bouygues were in control of four tunnelling sites, namely the Northern Interchange, Trelawney St, Wilson Rd and Southern Interchange sites.

11. Mr James Adams was employed by Lendlease and Bouygues as a Tunneller (Class 2). Mr Adams commenced employment with Lendlease on 9 December 2015 and was seconded to the Joint Venture.

12. Mr Adams had over 20 years experience in mining and tunnelling work.

13. At the time of the incident, Mr Adams was working at the Wilson Rd site (the site).

The water treatment plant

14. A large amount of wastewater laden with silt and sediment (i.e. slurry or sludge) was produced due to various construction processes. The sediment-laden wastewater had to be removed and treated as part of the tunnelling excavation operations.

15. The NorthConnex Project had a temporary water treatment plant for each of the four tunnelling sites. Lendlease and Bouygues engaged EnviroPacific Services Pty Ltd (EnviroPacific) to design, supply, install, commission, manage, operate, decommission and demobilise the temporary water treatment plants at the four tunnelling sites. EnviroPacific commissioned a temporary water treatment plant on the surface at the site on 9 August 2016.

Pressurised piping system

16. Lendlease and Bouygues were responsible for the design, construction, operation and maintenance of a pressurised piping system (PPS) which was part of the water treatment system at the site and connected to the water treatment plant.

17. The PPS consisted of a number of components including a pump located in the underground tunnel, an air compressor (which fed compressed air into pipes), pipes, supports, restraints and valves.

18. The PPS was designed to allow the pumping of the sediment-laden wastewater approximately 80 metres up a shaft from the bottom of the tunnel to the surface and into two flow balance tanks before entering the water treatment plant operated by EnviroPacific.

19. This was done using a combination of an underground pump and compressed air, which was injected into the pipes by an air compressor. The practice of adding compressed air to the wastewater in the pipes was known as “slugging” and was designed to assist the PPS to lift the wastewater, which included sediments, to the surface.

The flow balance tanks

20. Due to the presence of a higher level of silt and sediment in the slurry from underground than anticipated, two temporary tanks were installed on the surface at the site, adjacent to the water treatment plant. The tanks operated in addition to an existing pre-treatment system within the tunnel. They were of a similar design to shipping containers and were referred to as Tank 1 and Tank 2. The tanks served the purpose of flow balance tanks and also received wastewater and sediment that had been pumped from the tunnel below. Sediment in the wastewater settled at the bottom of the tanks. Clean water was then pumped into, and treated, in the water treatment tank. This process was called “desludging”.

The dewatering lines and inlet valves

21. In the middle of the flow balance tanks was an operator's platform providing access to the pipes and valves which controlled the flow of water from the tunnel into the tanks.

22. The wastewater and sediment from the tunnel were transported to, and discharged into, the flow balance tanks through two six-inch lines, made up of a series of pipes (dewatering lines). The dewatering lines consisted of a main operating line (Line 1) and a backup line (Line 2), used when maintenance needed to be performed on Line 1 or when Line 1 became blocked. Only one dewatering line was in operation at any time.

23. The outlet end of each dewatering line was attached to the flow balance tanks using a proprietary two-piece Flexistrut pipe clamp. This pipe clamp was connected to a vertical pipe support structure using an attachment weld.

24. Valves controlled the flow of water from the dewatering lines into each of the flow balance tanks. The valves were located toward the outlet end of each dewatering line and were reachable from the operator's platform between the two flow balance tanks. To stop the flow of water into one or other of the flow balance tanks, the operator had to climb up a ladder to the operator's platform and manually open or close the valve.

25. There were two different types of valves – the “gate valve” and the “butterfly valve” – that controlled the flow of water into the flow balance tanks. Each dewatering line had a gate valve to Tank 1 and a butterfly valve to Tank 2.

The task of desludging the flow balance tanks

26. When one of the flow balance tanks was filled with wastewater and sediment, the task of desludging the flow balance tank was undertaken. This involved an operator diverting the flow of water from the full (primary) flow balance tank to the unfilled (secondary) flow balance tank.

27. The steps taken to carry out the task were as follows:

1. Divert the flow of wastewater and sediment in the dewatering line from the primary tank to the secondary tank;

2. Let the sludge settle down in the primary tank;

3. Decant the cleaner water from the primary tank into the water treatment plant by way of a small pump, leaving the sludge behind in the bottom of the primary tank; and

4. Arrange for a “sucker truck” to remove the sludge from the primary tank.

28. This task was carried out one or two times per week. However, there was no set frequency because the need to desludge the tanks was determined by the amount of sediment and the quality of the wastewater being discharged from the tunnel into the tanks.

Design of the pressurised piping system

29. Design activities on the NorthConnex Project were classified into two categories: Project Works and Temporary Works.

30. The Project Works were the physical works required to be designed, constructed and completed as the final deliverables of the NorthConnex Project, and consisted of the Project Company's Works and State Works as defined by the Design & Construct Deed.

31. Temporary Works were any temporary physical works required for carrying out the Joint Venture activities, but which did not form part of the Project Works. This included temporary infrastructure installed or erected to undertake the construction of the Project Works.

32. As part of the NorthConnex Project, Lendlease and Bouygues had a “Temporary Works Design — Procedure” (TWD procedure) in place that applied to all such works at the site.

33. The purpose of the TWD procedure was to ensure that all reasonable and practical steps were taken to achieve design, construction, use, maintenance and removal of Temporary Works which complied with all relevant Australian Standards, Codes of Practice, Regulations and contractual obligations.

34. The PPS at the site was temporary infrastructure installed to undertake construction of the Project Works and fell within the definition of Temporary Works for the purposes of the TWD procedure.

35. The TWD procedure set out how to initiate and develop Temporary Works designs, the process for obtaining design advice, and achieving approval to contract and implement Temporary Works.

36. The TWD procedure provided that a Safety in Design (SiD) process should be carried out for all Temporary Works designs, in accordance with the Joint Venture management procedures, Work Health and Safety laws and regulations, and deed requirements. Despite this, there was no SiD process applied to the design of the PPS.

37. Lendlease and Bouygues assessed the PPS as “low risk” because it was comprised of proprietary products and systems which were certified as compliant with applicable Australian Standards at the time of purchase. This was also consistent with industry practice for tunnelling projects in Australia. As a result, Lendlease and Bouygues did not independently assess or certify the design through a SiD process, as was required by their TWD procedure.

The Incident

38. On 23 May 2017, Mr Adams was diverting the flow of wastewater and sediment from Tank 1 (which was full of water and sediment) to Tank 2 at the site. The wastewater and sediment were being transported to the surface using Line 1.

39. Mr Adams first closed the gate valve to Tank 1. At the time that Mr Adams closed the gate valve to Tank 1, the butterfly valve to Tank 2 was in the closed position. This allowed pressure to build up in Line 1 as both valves were closed.

40. Mr Adams then opened the butterfly valve to Tank 2, to allow the flow of water to recommence. This action caused the pressure that had built up in Line 1 to be suddenly released, resulting in force being exerted on the outlet end of Line 1.

41. The force of the pressure exerted on the outlet end of Line 1 caused the failure of the attachment weld that held the pipe clamp to the vertical pipe support structure. The piece of pipe at the outlet end of Line 1 rotated vertically and came into contact with Mr Adams, forcing him back onto the guardrail of the operator's platform causing him fatal crush injuries.

Plant and Equipment and Relevant Guidance Material

Use of compressed air in the pressurised piping system

42. The dangers associated with the use of compressed air relative to compressed water are outlined in Australian Standard 4343:2014, Pressure Equipment – Hazard Levels (AS 4343).

43. A formula set out in the AS 4343 calculates that a pressurised air system has a hazard level value thirty times greater than a pressurised water system.

Welding for pipe supports

44. Clause 3.28 of Australian Standard 4041–2006 (AS 4041), Pressure Piping states:

“PIPE SUPPORTS

3.28.1 General

3.28.1.1 Design criteria

This Clause (3.28) is intended to apply to support components and structure up to the support attachment to the main structure. The pipe support system shall be designed to support the dead weight of the piping and to permit the support points to move through cold to hot deflections given by the stress range analysis.

In addition, the pipe work shall be supported to ensure the following:

a) pipe sag and creep are within acceptable limits.

b) stresses in the elements of the supporting system do not exceed the values permitted by this Standard

c) suitable control of vibration and oscillation of the piping resulting from fluid flow and machine-induced forces

d) prevention of unintentional disengagement of piping from the supports.”

Manual operation of valves

45. The gate and butterfly valves were reachable from the operator's platform between the two flow balance tanks at the site. The outlets into Tank 1 were at the opposite end of the tank to the platform. The outlets into Tank 2 were on the same side of the tank as the platform.

46. The location of the valves meant that the operator was placed at risk of being struck by the components of the PPS if pressure were to build up and then be suddenly released from the system.

Attachment weld

47. Lendlease and Bouygues engaged boilermakers to undertake welding work at the site, including the welding at the outlet end of the dewatering lines. They did not provide the boilermakers with a written scope of works for the welding work to be performed at the site.

48. Lendlease and Bouygues do not have any records of the welds having been certified. Additionally, Lendlease and Bouygues had not undertaken an inspection of the attachment weld connecting the pipe clamp and the vertical pipe support structure at the outlet end of Line 1.

Systems in place before the incident

Safe Work Method Statement

49. Prior to the incident, EnviroPacific and the Joint Venture prepared a Safe Work Method Statement (SWMS) for the site titled “Water treatment plant ongoing operation and maintenance”.

50. The SWMS applied to the task. The SWMS included a reference to an activity called “Inspection & desludging tanks”. The hazards identified in respect of this activity were “fall from heights & drowning risk” and the control measures included “ensure tank valve is isolated by closing off valve and placing personal lock and danger tag”.

51. There was no reference in the SWMS to the hazards associated with pressurised fluids or the risk of uncontrolled release of energy. Further, the SWMS did not address the following:

1. The need for the PPS to be isolated from any form of energy prior to commencing the task, to control the risk of unwanted/uncontrolled release of stored energy;

2. The method of releasing any stored energy in the dewatering lines;

3. The method for testing the isolation effectiveness for the dewatering lines;

4. The sequence for opening and closing any valves in the dewatering lines from the bottom of the tunnel to the flow balance tanks.

Information, Instruction and Training

52. There was a Joint Venture Work Health and Safety Management Plan (WHS Plan) in place for the NorthConnex Project. The WHS Plan identified the hazards of being exposed to uncontrolled energy sources.

53. The WHS Plan said that before undertaking works on the energised plant, equipment or maintenance of equipment, effective isolation procedures should be implemented, including physical lockout and tag out.

54. Lendlease had an “Isolation and Lock-out Procedure” that identified the hazard of being exposed to uncontrolled energy sources which could arise when working on the plant.

55. The Joint Venture also had an “Isolation and Lockout Safe Work Procedure” at the time of the incident which required personnel to identify all energy sources that occur in the workplace and manage the risk of working on, in or around those energy sources.

56. Mr Adams was not provided with any specific information, instruction or training as to the hazard of being struck due to a build-up of pressure or an unwanted/uncontrolled release of stored energy when performing the task.

52. Further, Mr Adams was not provided with any documented information or instruction as to the step-by-step sequence of his task, to control the hazard of being struck because of the uncontrolled release of energy.

Systems of work after the incident

Response to Improvement Notice

58. Following the incident, SafeWork NSW issued an Improvement Notice (7-307107). The Notice required that the maintenance, inspection and, if necessary, testing of the mounting/bracing system for discharge pipes on the water treatment plant balance tanks be carried out by a competent person.

59. In response, Lendlease and Bouygues engaged EPES Consulting Engineering Pty Ltd (EPES) to review the approach taken to the inspection and maintenance of the dewatering lines of the PPS.

Inspection, Maintenance and Testing Record

60. EPES developed an “Inspection, Maintenance and Testing Record for Mounting and Bracing system associated with discharge pipes” (Record). This Record included the following inspection requirements: inspection for corrosion of components or weld connections (every three months); inspection for cracks or evidence of failure at structural connections (every three months); and non-destructive examination of weld connections to structural elements per Australian Standard 1554.1 (every six months).

61. The Record was disseminated across the NorthConnex Project for implementation on 15 June 2017.

62. Lendlease and Bouygues now require that any welding associated with the installation of pressurised equipment must comply with AS 4041.

Project Recommencement Plan

63. Following the incident, construction activities on the NorthConnex Project were suspended.

64. Prior to recommencement, Lendlease and Bouygues prepared and implemented a “Project Recommencement Plan” which included the following requirements:

1. A risk assessment for sub-projects against the requirements in the Lendlease Global Minimum Requirements;

2. The identification of all pressurised systems across the NorthConnex Project;

3. A hydraulic design review of the pressurised piping system and water treatment plant;

4. An assessment of the components (pumps, pipes, couplings, valves, isolation, controls) of the pressurised piping system and water treatment plants;

5. Review of isolation procedures to determine if sufficient;

6. Installation of improved pipeline holding brackets (pipe clamps and pipe support structures) at the outlet end of the dewatering lines at Tank 1;

7. Locking the gate valve controlling the flow of water into Tank 1 “open” so the system is always open;

8. Installation of an exclusion zone around the flow balance tanks;

9. Temporary Works design for the dewatering lines;

10. If pressurised lines were considered high risk, having the hydraulic design completed by an independent designer.

Strategy for dewatering and service pipe installation

65. Lendlease and Bouygues also undertook a review of its strategy for dewatering and service pipe installation and operation. As part of the review, it was agreed that:

1. all pressurised piping systems across the NorthConnex Project would be designed by a third-party Temporary Works designer;

2. the use of compressed air in the dewatering lines would cease;

3. there must be an electronic shutdown of the pump system in the tunnel when the flow balance tanks on the surface were full;

4. the pressurised piping system was locked to “open” so that opening and closing the valves was no longer possible; and

5. all pipework restraints and supports in the shaft and surface must be Temporary Works designed.

SWMS for Desludging Flow Balance Tanks

66. Lendlease and Bouygues prepared a SWMS titled “Desludging Flow Balance Tanks”.

67. The SWMS includes a “hazard identification and control” section which includes:

“4.15 UNCONTROLLED RELEASE OF STORED ENERGY— strike or damage from over pressured system

…

4.17 FAILURE OF FIXTURES OR FITTINGS — degradation of fixture or fittings under pressure line could cause failure in line”

The Evidence for Lendlease and Bouygues

Affidavits of Mr Kieron Dominic Little

68. Mr Kieron Dominic Little affirmed two affidavits on 18 September 2020, one on behalf of Lendlease and the other one on behalf of the Joint Venture. The summarised material below will deal with the material from both affidavits together to avoid repetition.

69. Mr Little has been the National Operations Manager at Lendlease Building Pty Ltd – another subsidiary of Lendlease Corporation Limited – since 10 September 2020. From December 2016 he was the General Manager of Health and Safety with Lendlease. This role involved overseeing the safety strategy of Lendlease’s projects, including the NorthConnex Project. Mr Little deposed that he was actively involved in externally monitoring and supporting safety for the NorthConnex Project through regular meetings, project reports, reviews, audits and inspections.

Expression of regret

70. On behalf of Lendlease, Mr Little expressed deep regret and acknowledged the significant impact the incident has had upon the lives of Mr Adams’ family, wife, son and grandchildren. The CEO of the Lendlease Corporation, Mr Steve McCann, publicly expressed sadness, regret and condolences through various media statements, investor communications, the 2017 Annual Meeting and the 2017 Annual Report.

Lendlease’s approach to safety

71. Mr Little deposed that work health and safety is a number one priority across the Lendlease business. At the Group level, the Lendlease Board, CEO of Lendlease and the Global Leadership Team are the relevant parties responsible for the strategic direction of safety. The Global Head of Safety reports to these parties every month (or more frequently when required). At a business level, each General Manager of Safety within each subsidiary oversees safety. Mr Little was in charge of this function at Lendlease. At the project level, each project was required to have a Health and Safety Management Plan in place that was consistent with Lendlease’s policies, requirements, and strategies. Finally, the Lendlease Risk Management and Audit Committee reviews the effectiveness of the enterprise risk management system in identifying material risks and having appropriate processes in place.

72. Mr Little’s affidavit annexed the “Lendlease Global Minimum Requirements” that have applied to all Lendlease operations globally, including on Joint Venture projects, since 2002.

73. Lendlease and Bouygues were jointly responsible for the works carried out in performance and completion of the NorthConnex Project in line with the Joint Venture they entered into via the Design and Construction Deed dated 31 January 2015.

74. Mr Little explained that the Joint Venture adopted the Lendlease Global Minimum Requirements described above as well as Critical Risk Rules that were site-specific rules identified as fundamental to the safety of all NorthConnex Project workers. Attention was drawn to these rules through daily toolbox talks and pre-start briefings. All workers were also required to undertake both a general project induction and an extensive site induction before commencing work on site, as well as receiving competency-based training and assessments periodically. All workers were also required to provide evidence of current licences and certifications at the site induction. Additionally, all tunnel workers attended a tunnel induction prior to entering tunnel areas which provided instructions on specific risks and controls for the tunnel environment.

75. Since the Project commenced, the WHS Management Plan was implemented and overseen by the NorthConnex Project Safety Director. Mr Little described the features covered by the plan including:

1. Identification and management of work health and safety risks and hazards via risk assessments and controls;

2. Recording and managing project risks in the Risk Register;

3. Implementing a SiD process;

4. Requiring the development of SWMSs for construction activities in the Risk Register or any activity categorised as a “high risk” activity;

5. Requiring the daily use of Job Hazard Analysis and/or Start Card tools to conduct daily informal task-based risk assessments by staff and supervisors;

6. Ensuring Permits to Work are issued for high-risk activities in accordance with the Permit to Work Procedure;

7. Requiring the conduct of daily inspections of all high-risk activities by Safety Coordinators assigned to the NorthConnex Project;

8. Applying a Temporary Works Design Procedure;

9. Having an audit system in place for the NorthConnex Project that provides for internal quarterly compliance audits, health surveillance, atmospheric and environmental monitoring, workplace inspections, ongoing site safety observations to identify and remedy hazards, hazard/incident reporting, risk assessment workshops, and review/verification of design & engineering methods.

Response in the immediate aftermath of the Incident

76. On-site first aid assistance was administered to Mr Adams and emergency services were contacted. All construction activities were suspended and a Crisis Management Team was convened to co-ordinate and respond to the incident in accordance with the NorthConnex Project’s Crisis Management Plan, Emergency and Incident Response Management Plan and WHS Management Plan. The Joint Venture Steering Group, the Directors of both Lendlease and Bouygues were informed of the incident shortly after it occurred and have been regularly updated regarding the welfare of Mr Adams’ family, investigations into the incident and new safety measures.

Support provided to Mr Adams’ family

77. On the morning of the incident, two staff members from Lendlease accompanied police officers to attend the Adams family home in Brisbane to provide information and support to Mr Adams’ wife, Mrs Diane Adams, and their son, Mr Dallas Adams. They accompanied them both back to Sydney. The NorthConnex Project Construction Director, Mr Vince Newton, met Mrs Adams and Mr Dallas Adams at Sydney Airport and accompanied them to the hospital. Mr McCann (CEO of Lendlease Group), Mr Craig Laslett, (CEO of Lendlease Engineering) and Mr Philippe Bouquet (Bouygues Chairman), personally met with Mrs Adams and Mr Dallas Adams at the hospital to extend condolences. A site visit where the incident occurred was arranged and various members of the team on the NorthConnex Project spent time with Mr Adams’ family in the days before and after the funeral.

78. The Joint Venture provided over $450,000 in financial support to Mr Adams’ family in the six months following the incident. This included:

1. Flights, accommodation and travel expenses to enable Mr Adams’ family to urgently travel to and remain in Sydney immediately after the incident;

2. Matching donations given by Lendlease and Bouygues employees and contract workers to a memorial fund;

3. Contributions to the funeral and a memorial;

4. Installing a permanent memorial bench at the Wilson Rd site;

5. Covering flights, accommodation and other travel expenses to enable interstate and overseas family members to attend the funeral;

6. Providing financial assistance to the family to enable post-funeral sacraments to occur and visits to extended family who were unable to attend the funeral;

7. Supporting Mr Dallas Adams financially to make up for the loss of earnings incurred due to his absence from work following his father’s death.

79. Lendlease continues to offer support. Mr Dallas Adams has been engaged on multiple Lendlease projects nationally, sharing his “Why Safety Matters” story through over 150 presentations to workers.

Support provided to workers

80. Registered psychologists were made available between 23 May 2017 and 2 June 2017 at six on-site locations to provide critical incident support to NorthConnex Project workers and their families. While construction activities were suspended, briefing sessions and updates were regularly arranged for employees.

81. In late May 2017, a memorial event was held for Mr Adams at the Wilson Rd site with Mr Adams’ family, leadership teams from Lendlease and Bouygues, and Joint Venture employees and workers in attendance.

82. Ongoing psychological and counselling services were made available to all workers requiring additional support.

83. All the Lendlease employees who were on the NorthConnex Project were also given details to enable them to access the Lendlease Employee Assistance Program, which included its 24-hour counselling service.

Improvements made in response to the incident

84. The following improvement measures were taken by the Joint Venture:

1. A Project Recommencement Plan was introduced to ensure a safe, structured return to normal operations across the NorthConnex Project. This plan set out a number of steps to be taken before workers returned to the site.

2. Introduction of the following new principles for the NorthConnex Project: requiring that all pressurised piping systems be designed by a third-party temporary works designer; regular recorded maintenance and testing of the PPS; prohibiting the use of compressed air to facilitate pumping water within dewatering lines; requiring the tunnel pump system be automatically shut down when a flow balance tank on the surface becomes full; requiring that the gate valves between two flow balance tanks on the surface are electrically actuated; where there is only one flow balance tank on the surface, ensuring the inlet is open-ended or the gate valves are locked “open” to create a permanently open system; requiring that all pipework restraints and supports be included in the overall design package for a particular piece of work.

3. Developed an Inspection, Maintenance and Testing Record setting out the requirements and timing for the inspection, maintenance and testing of the mounting/bracing components of PPS;

4. Installed chain restraints along service pipes in the tunnel, along with additional bracing brackets at the outlets to the dewatering system;

5. Developed a “Desludging of the Flow Balance Tank” SWMS that specifically identifies “uncontrolled release of stored energy” and “failures of fixtures or fittings” as potential hazards;

6. Made amendments to a number of existing project documents including SWMSs and Standard Operating Procedures.

85. The following measures were taken specifically by Lendlease to improve its temporary works procedures and processes:

1. Introduction of a requirement to appoint a Temporary Works Co-ordinator across the Lendlease business and all Joint Venture projects;

2. Developing detailed risk classification guidelines and clear requirements for the safe management of Temporary Works;

3. Expanding SiD guidelines and defining roles and responsibilities for SiD for all projects;

4. Strengthening requirements for surveillance of Temporary Works;

5. Adding requirements for the dismantling and removal of Temporary Works across all projects;

6. Introduction of a requirement to engage an Independent Proof Engineer for Temporary Works that fall in the highest risk category.

Industry Contribution

86. The NorthConnex Project has created approximately 10,000 jobs in NSW, including for over 3,300 Lendlease and Bouygues employees. The Joint Venture has invested $10 million over the project timeline. In his affidavit, Mr Little explains that throughout the NorthConnex Project, the Joint Venture has supported local industry and as at February 2020, 96.8% of all procurement for the NorthConnex Project has occurred through Australian suppliers. The Joint Venture also participates in both Lendlease and Bouygues employee health, wellbeing programs and diversity initiatives.

87. Lendlease engages in several programs to improve participation from unrepresented groups within the construction industry. This includes:

1. The Women in Construction pre-employment programs which delivers training to women from disadvantaged backgrounds;

2. Career Trackers and the Aboriginal Employment Strategy iTradies program which involves the placement of Indigenous students in internship and pre-employment opportunities;

3. CareerSeekers New Australian Internship programme through which Lendlease has placed 70 interns from asylum seeker and refugee backgrounds - 80% have gained permanent employment following completion of the program;

4. Lendlease has also partnered in industry and university research programs to improve worker protection in areas such as silica exposure and musculo-skeletal injuries.

88. Lendlease is a long-standing member of the Infrastructure Sustainability Council of Australia and has four “Leading” and six “Excellent” ISCA-rated projects.

Community Contribution

89. The Joint Venture has taken a corporate social sustainability approach to the NorthConnex Project reusing and recycling materials where appropriate and working with Indigenous communities and historical societies to protect and preserve areas of cultural and environmental significance. There has also been regular contact with the local community regarding construction work updates and feedback on planning processes. The Joint Venture has actively played a role in annual community days, development of school learning programs, mentoring of tertiary sustainability programmes and school careers talks. In September 2017 the Joint Venture team raised funds for the Hornsby Ku-ring-gai Women’s Shelter which provided essential crisis accommodation for women experiencing homelessness or domestic violence.

90. Lendlease has a Reconciliation Action Plan in place that embeds reconciliation in the delivery of all core business practices and has also run a global “Mums for Safety” campaign in which the mothers of Lendlease workers have been recruited to deliver health and safety messages.

Co-operation with SafeWork NSW

91. Mr Little deposed that at all times, the Joint Venture, Lendlease and Bouygues have co-operated with SafeWork NSW investigation processes.

Affidavit of Mr Ritchie John Green

92. Mr Ritchie John Green swore an affidavit on 18 September 2020. Mr Green has been a health and safety professional for over 28 years, with a portion of this time working as a Principal Inspector for WorkCover NSW between 1998-2008. He has been employed by Bouygues as a Quality, Safety and Environment Director since 9 January 2013. He possesses tertiary qualifications relating to construction management and injury and illness prevention.

93. Mr Green deposed that he has played an active role in monitoring and supporting the NorthConnex Project’s safety performance including regular meetings, project reports, reviews and inspections.

Expression of regret

94. Both personally and on behalf of Bouygues, Mr Green expressed acknowledgement and deep regret for the incident and the impact it has had on Mr Adams’ family, the Joint Venture, Lendlease and Bouygues employees and contract workers, and emergency services personnel.

Bouygues’ Health and Safety Approach

95. Bouygues has had a health and safety program in place that involves incorporating a safety culture on all Bouygues projects and a commitment to eliminate incidents with the potential to result in permanent impairment injuries.

96. Bouygues established “Global Safety Essentials” (GSEs) in January 2016, which are the company’s work health and safety standards. These standards address 12 critical risks.

97. Bouygues places an emphasis on risk elimination through the integration of the SiD process into all its project design phases, as well as utilising a “Critical Risk Review” process and “Methods Drawings” for all identified high-risk activities. Peer reviews are carried out to provide a forum to challenge any proposed construction methodology in light of performance standards.

98. Bouygues also regularly provides training via its Health and Safety Leadership Program to its staff. The training incorporates Bouygues’ safety values and trainees complete modules on injury-free culture and effective safety leadership.

Personal involvement following the incident

99. Mr Green stated that he attended the Wilson Rd site to provide support to the site team on the day of the incident, attended Mr Adams’ funeral and was personally involved in the review of all sub-project sites. He was a signatory to authorise the Recommencement Plan prior to works being permitted to resume along with Bouygues’ Managing Director, Philippe Bouquet, and the Lendlease CEO, Mr Laslett.

Safety measures taken by Bouygues in response to the incident

100. Bouygues has learnt from the incident and implemented significant changes to its subsequent tunnelling projects including the WCX3A and Melbourne Metro. In his affidavit, Mr Green detailed the following steps taken following the incident:

1. Reviewed, reinforced and implemented improvements to Bouygues’ existing temporary works procedures and training, including appointing a Temporary Works Engineer to project sites;

2. Incorporating a mandate that, irrespective of whether Bouygues is the nominated Principal Contractor or not, all Joint Venture projects have their Health and Safety Management Systems aligned to the Bouygues GSEs;

3. Updating the GSEs to incorporate all knowledge obtained from actual and potential incidents occurring over the past few years;

4. Creating clear requirements prohibiting the use of compressed air to facilitate pumping water within dewatering lines;

5. Implementing detailed guidelines on risk classification categories for Temporary Works;

6. Expanding guidelines on SiD;

7. Applying requirements for safe design, installation, modification and maintenance of Temporary Works and change management protocols;

8. Strengthening requirements for the surveillance of Temporary Works;

9. Adding a Temporary Works Permit and requirements for dismantling and removal of temporary work;

10. Requiring the engagement of an Independent Proof Engineer for the highest risk category Temporary Works packages.

101. In partnership with Lendlease, Bouygues has developed a comprehensive Temporary Works Technical Training Programme for staff working on tunnelling projects. The training aims to clearly define what constitutes Temporary Works, reinforce WHS Act obligations, provide knowledge on the SiD framework, define roles and responsibilities for Temporary Works management, cover what good practice for Temporary Works is, outline planning requirements for Temporary Works and build capacity and understanding within the industry.

102. Bouygues and Lendlease have also collaborated to create and apply detailed document guides to current tunnelling projects regarding design, risk assessment, fabrication and erection, selection of Temporary Works designers, Temporary Works interface and safety.

Other Safety Initiatives

103. Bouygues has also introduced the following additional safety initiatives:

1. Introducing “Thalia” in 2019, a Bouygues Construction Group patented Tunnel Boring Machine (TBM) Stimulator to Australia to foster local tunnelling capability by training TBM pilots in a virtual reality environment;

2. Making significant investments in proximity detection system technology which is capable of alerting the plant operator via an audible alarm when persons are in the vicinity of the mobile plant;

3. Contributed to staff safety events that reinforce health and safety values and principles among its personnel.

Community participation

104. Bouygues provides financial support to projects and charities via its foundation Terre Plurielle. Examples include supporting Bear Cottage, the Oxfam Trailblazer Walk and the Autism Regatta.

Co-operation with SafeWork NSW

105. The Joint Venture, Lendlease and Bouygues have co-operated with all of SafeWork NSW’s investigation processes.

Consideration

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

Objective seriousness of the offence

107. 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].

108. 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].

109. 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.”

110. 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].

111. 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.

112. 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.

113. The Court of Criminal Appeal has examined the sentencing process with regard to the 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.”

114. 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.”

115. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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.”

116. My findings about the defendants’ level of culpability are based upon the following:

1. The risks associated with the potential exposure of workers to crush injuries due to the uncontrolled release of stored energy in the PPS was a foreseeable one. It was one that was known or identified, or reasonably able to be known or identified, by both defendants. There was relevant guidance material on hazards associated with pressurised piping available at the time of the incident.

2. There was a significant likelihood of the risk occurring as the PPS had not been the subject of a SiD process which would have enabled the identification of issues such as inadequate welding of the support brackets at the outlet end of the pipes. There was a risk that if the welding of the support brackets at the outlet end of the pipes was not adequate to withstand the pressure that might be placed on the pipework during its operation, there could be a system failure.

3. The possible consequences for the health and safety of workers arising from the uncontrolled release of stored energy in the PPS was death or serious injury.

4. There were several reasonably practicable measures that Lendlease and Bouygues could have implemented to eliminate or minimise the risk. This includes the following steps:

1. The engagement of appropriately qualified persons to undertake a SiD process for the design of the PPS to ensure that the system complied with the relevant standards;

2. The implementation of a pump system that could pump the required pressure of wastewater from the bottom of the shaft through the PPS without the use of compressed air;

3. Ensuring that the welds attaching the pipe clamps to the pipe support structure at the outlet end of the PPS were designed to withstand all static and dynamic forces that may be applied to the welds during operation;

4. The preparation of a Safe Work Method Statement for the task of desludging the flow balance tanks that adequately addressed the hazards associated with pressurised fluids or the risk of uncontrolled release of energy.

5. The above measures were suitable, available and able to be implemented by Lendlease and Bouygues before the incident occurred. There was no evidence that the cost of such measures was an unreasonable burden. If they had been implemented at the time of the incident, the risk would have been eliminated or minimised.

6. Mr Adams lost his life due to the catastrophic injuries he suffered.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. Counsel for the prosecutor submitted that the objective seriousness was in the high range. Senior counsel for the defendants submitted that it was in the mid range. Senior counsel pointed to par 44 of the Agreed Statement of Facts (PX 1, Tab 3). It was an agreed fact that the defendants assessed the PPS as low risk. The system comprised proprietary products and systems which were certified as compliant with applicable Australian Standards. The defendants did not independently assess or certify the design through a SiD process, as was required by the TWP. Senior counsel submitted that because the pipework complied with accepted industry practice, and because there had been no previous problems of the kind experienced during the incident, it was understandable that the defendants had assessed the work as low risk. I accept this submission.

9. For these reasons I reject the submission made by counsel for the prosecutor, and I accept the submission made by senior counsel for the defendants, regarding where these offences fall in the range of objective seriousness.

10. Of course, defendants must be proactive in carrying out their obligations under the Act. This case demonstrates that it is not enough for a duty holder to act in accordance with the standard practice. It is the obligation of every employer to challenge such thinking to ascertain whether or not the obligations imposed by the Act are being satisfied.

117. I find that the level of culpability of Lendlease is in the mid range.

118. I find that the level of culpability of Bouygues is in the mid range.

Deterrence

119. 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

120. The penalty must reflect the need for specific deterrence. Bouygues is still conducting its business. Its operations involve large scale infrastructure construction, high-risk work, and the continuing engagement of workers.

121. Specific deterrence is not a significant factor for Lendlease, as it has sold its business since the incident.

Aggravating factors

122. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

123. Bouygues does not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

124. However, Lendlease has 13 previous convictions under ss 8(1), 8(2), 15(1) and 16(1) of the Occupational Health & Safety Act 1983 (NSW). On examination however, these offences were committed by companies which Lendlease later bought and took over. In effect Lendlease has “inherited” this criminal record. However since the Lendlease safety system has been the one applied to engineering projects, there have been no offences or convictions. I propose to treat Lendlease as a company with no previous convictions.

125. Lendlease and Bouygues are both otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which both offenders took after the incident demonstrate this.

126. Lendlease and Bouygues are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

127. Lendlease and Bouygues have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. They have taken positive steps to guard against the risk of an incident such as this ever happening again. They have brought their documentation and their procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

128. Lendlease and Bouygues have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they have accepted responsibility for their actions and have acknowledged that the death of Mr Adams was caused by their actions.

129. Lendlease and Bouygues entered guilty pleas: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. 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) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give a 25% discount to each offender for an early plea.

130. Lendlease and Bouygues gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. Lendlease and Bouygues co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

131. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49; (2011) 244 CLR 462 at [30].

132. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

133. I see no reason to differentiate between the two defendants in relation to the penalty to be imposed. I have already explained my approach to the different criminal records of the defendants and I have explained my reasons for regarding them both as having no record. Both parties to the Joint Venture were under a primary obligation to comply with the Act. The objective seriousness of the offence is the same for both defendants. The aggravating factor is the same and the mitigating factors are the same. The penalty will therefore be the same for both defendants.

Capacity to pay a fine

134. 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.

135. 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.”

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

Victim Impact Statements

137. The defendants were convicted at the sentence hearing on 2 October 2020.

138. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a). By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

139. 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).

140. 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).

141. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

137. Mr Dallas Adams, the son of Mr James William Adams, provided a written Victim Impact Statement (PX 2) which he read out in court. Mr Adams said that he has felt “sick and in shock” since the date of the incident. He explained that he has been left absolutely gutted, angry, disappointed and wanting to blame everyone who worked on the NorthConnex Project.

138. Before the tragic loss of his father, Mr Dallas Adams led an active lifestyle, busy with family and work commitments and competing in various sports. He described his father as an amazing father, grandfather and a loving husband who was only a few months away from retirement. Mr Dallas Adams said that his family has been struggling to come to terms with the accident and have been left with a tremendous void and sadness that they will never be able to overcome. He explained that the family will continue to experience grief and heartache with the knowledge that this incident should never have occurred.

139. In his statement, Mr Dallas Adams described the personal impact as brutal and said he finds it incredibly difficult to wake up every day. He cries himself to sleep and experiences nightmares on regular occasions. He experiences guilt for not accepting the loss of his father. He has required ongoing professional help to deal with grief, anxiety, depression, anger, post-traumatic stress disorder and suicidal thoughts. Mr Dallas Adams no longer engages in sporting activities and finds himself withdrawing from social settings. He struggles to be happy and feels that he cannot be there for his children in the way he used to be due to the impact of his own father’s death.

140. In the immediate aftermath of the incident, Mr Dallas Adams left his job as an electrician to assist his mother with his father’s body retrieval, funeral arrangements and correspondence with his father’s employer and estate lawyers. He has not been able to return to work on a full-time basis because working in his trade reminds him of the industry that “killed my father”. Since the incident, Mr Dallas Adams has been supporting his grieving mother financially as the loss of her husband resulted in a significant financial burden.

141. The court acknowledges the pain and suffering of the entire family of the late Mr James Adams and offers its own sympathies to everyone affected by his preventable and untimely death.

Costs

147. The parties have agreed to an order that each defendant is to pay $45,000 for the prosecutor’s costs – a total of $90,000.

Penalty

148. In relation to Lendlease Engineering Pty Limited (file number 2019/158579) my orders are:

1. Lendlease Engineering Pty Limited was convicted on 2 October 2020.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Lendlease Engineering Pty Limited to pay a fine of $375,000.

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

5. Order Lendlease Engineering Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

149. In relation to Bouygues Construction Australia Limited (file number 2019/158619) my orders are:

1. Bouygues Construction Australia Pty Limited was convicted on 2 October 2020.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Bouygues Construction Australia Pty Limited to pay a fine of $375,000.

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

5. Order Bouygues Construction Australia Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

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Decision last updated: 09 October 2020