SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2)

[2020] NSWDC 668

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668

Hearing dates:

6-10 July 2020; 13-17 July 2020; 20-23 July 2020; 5-7 August 2020; 13 August 2020

Date of orders:

6 November 2020

Decision date:

06 November 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The elements set out in the Second Amended Summons dated 24 July 2020 have been proved beyond reasonable doubt.

(2)   I find the defendant McConnell Dowell Constructors (Aust) Pty Limited guilty.

(3)   The matter will be listed for a sentence hearing on a date convenient to the parties.

Catchwords:

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

 

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

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

OTHER — Unrestrained steel headstock fell on rigger working on a barge — no adequate risk assessment for landing headstocks on barge and working upon them — deck space not cleared to lay headstocks down — no visual inspection of barge despite contractual inspection obligation on defendant

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 133(2)

Evidence Act 1995 (NSW), s 38

Mines Safety and Inspection Act 1994 (WA), s 9, s 19

Occupational Health and Safety Act 2004 (Vic), s 21

Occupational Health, Safety and Welfare Act 1986 (SA), s 24

Work Health and Safety Act 2011 (NSW), 3, 7, 12, 16, 17, 18, 19, 20, 21, 32, 244, 275

Work Health and Safety Regulations 2011 (NSW), cl 315

Cases Cited:

Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92

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

Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313

Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57

Hamersley Iron Pty Ltd v Robertson (Unreported, Supreme Court of Western Australia, Steytler J, 2 October 1998)

Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119

Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

R v Associated Octel Ltd [1994] 4 All ER 1051

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

Texts Cited:

WorkCover Construction work code of practice dated July 2014

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
McConnell Dowell Constructors (Aust) Pty Limited (Defendant)

Representation:

Counsel:
J Agius SC with M Cahill (Prosecutor)
B Hodgkinson SC with W Thompson (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Norton Rose Fulbright (Defendant)

File Number(s):

2018/387429

Publication restriction:

Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication or other disclosure of the videos in PX 17 upon the ground that it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

Table of Contents

Judgment

Introduction

The Task of this Court

The Elements of the Offence

The Second Amended Summons

The Relevant Law

General Principles

The Applicable Standard

Duties of a Principal Contractor

Barangaroo Ferry Hub Project

The Arrestors

Headstocks

The Maeve Anne

The Sub-Contract Agreement

The Supplemental Agreement

The One Team Approach

Documented Safety System at the Barangaroo Ferry Hub Project

Project Work Health and Safety Management Plan

Brady Marine Project Construction Safety Plan

Safe Work Method Statements

Pre-start Meeting on 28 February 2017 and Minutes

START Cards on 28 February 2017

Pre-start Meeting on 1 March 2017 and Minutes

START Cards on 1 March 2017

Evidence given by the Defendant’s Personnel

Dennis Fitzgerald

Jason Pickersgill

Matthew Mynott

Robert Kreft

Evidence given by Brady Marine Personnel

Francois Labuschagne

Spencer McDonald

Alan Woolley

Daniel Hartigan

Aaron McKay

Edward Robins

Patrick Griffin

David Brough

Evidence given by Others

Peter Brennan

Daniel Duemmer

Expert Evidence

Findings of Fact

Findings of Fact relevant to Duties of a Principal Contractor

Findings of Fact in relation to the Events of 28 February 2017

Findings of Fact in relation to Events of 1 March 2017

Findings of Fact concerning Events after 1 March 2017

Findings of Fact in relation to Demobilisation Works

Consideration of Element 1 – Whether the Defendant owed a Duty

Consideration of Element 2 – Whether the Defendant failed to comply with the Health and Safety Duty

The Risk

Reasonably Practicable – Section 18

Findings of Fact – The Likelihood of the Risk Concerned Occurring – s 18(a)

Findings of Fact – The Degree of Harm that might result from the Risk – s 18(b)

Findings of Fact – What the Defendant Knew or Ought Reasonably to have Known – s 18(c)

Findings of Fact – Availability and Suitability of ways to Eliminate or Minimise the Risk – s 18(d)

Findings of Fact – The Cost associated with available ways of Eliminating or minimising the Risk – s 18(e)

Duty of a Principal Contractor

Reasonably Practicable – As Pleaded

Undertaking a Risk Assessment

Safe Work Procedure

Direction to Lay Headstocks Down or Restrain Them

Supervision, Instruction and Training

Prohibiting Workers

Storage or Removal

Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

Conclusion

Orders

Postscript Concerning the Conduct of the Trial

Judgment

Introduction

1. McConnell Dowell Constructors (Aust) Pty Limited (the defendant) pleaded not guilty to a charge that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health & Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Timothy Macpherson, Daniel Hartigan, Aaron McKay, Spencer McDonald and Francois Labuschagne (the workers) to a risk of death or serious injury contrary to s 32 of the Act.

2. On 1 March 2017 the workers were on the Maeve Anne barge at the Barangaroo Ferry Hub (BFH) project. Two headstocks which were standing upright and unrestrained on the deck of the Maeve Anne fell over and onto Mr Macpherson, who died as a result of severe injuries sustained.

3. The defendant was the principal contractor at the BFH site. A key issue in the case involves the scope and discharge of its duty under the Act.

4. The issues to be determined are:

1. Did the defendant owe the workers a health and safety duty under s 19(1) of the Act?

2. Did the defendant fail to comply with its health and safety duty by failing to take any of the steps particularised in paragraph 17 of the Second Amended Summons?

3. Did the defendant’s breach of duty expose the workers to a risk of death or serious injury?

The Task of this Court

5. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

6. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence, unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.

7. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

8. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.

9. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

The Elements of the Offence

10. Section 32 of the Act provides:

“A person commits a Category 2 offence if:

(a)    the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.”

11. The elements of the offence are:

Element 1 The defendant owed the workers a duty under s 19(1) of the Act;

Element 2   The defendant failed to comply with that duty; and

Element 3   The failure exposed the workers to a risk of death or serious injury.

The Second Amended Summons

12. The first page of the Second Amended Summons dated 24 July 2020 particularises the date of the offence as 1 March 2017 and the place of the offence as at or near the Barangaroo Ferry Wharf at Barangaroo NSW.

13. Pars 1-15 of the Second Amended Summons set out the background facts which the prosecutor seeks to prove. All of those facts have been established by the evidence, which is examined in detail below. Pars 1-15 of the Second Amended Summons are as follows:

“1.    The defendant was and is a corporation.

2.   The defendant was conducting a business or undertaking which involved the development of major infrastructure construction projects.

3.    On or about September 2015, the defendant was engaged by Transport for NSW to construct a new ferry terminal for the Barangaroo development at Barangaroo, Sydney (“the Project”).

4.   At all relevant times, the defendant conducted its business or undertaking at or near Barangaroo Ferry Wharf, Barangaroo, New South Wales including on or near a barge called the Maeve Anne (‘barge’) which was working at or near Barangaroo Ferry Wharf in Sydney.

5.   At all relevant times, the barge was a workplace within the meaning of the Act, and was controlled by the defendant, as the principal contractor.

6.    On or about 28 January 2016 the defendant engaged Brady Marine & Civil Pty Ltd (‘Brady Marine’) ACN 147 065 843 to provide marine services and the installation of piling works for the Project, from the barge.

7.   At all relevant times, Loughleigh Engineering Pty Ltd (‘Loughleigh’) ACN 146 182 489 was contracted to provide boilermaking/welding works for the Project.

8.    The workers engaged by the defendant, or caused to be engaged by the defendant, to work on the barge included: Daniel Hartigan, Timothy Macpherson, Aaron McKay, Spencer McDonald, Francois Labuschagne and Allan Woolley.

9.    Mr Hartigan was employed by Loughleigh, to perform welding services on the Project.

10.   Mr Macpherson, Mr McKay and Mr McDonald were:

a.   employed by Constructive Workforce Pty Ltd (‘Constructive’) ACN 600 455 490 which had a contract with Brady Marine to provide labour to undertake work on the Project; and

b.   assigned by Constructive to work for Brady Marine on the Project; and

c.   directed by Brady Marine to work on the Project.

11.   Mr Labuschagne and Mr Woolley were employed by Brady Marine and assigned by Brady Marine to work on the Project.

12.   Mr Hartigan, Mr Macpherson, Mr McKay, Mr McDonald, Mr Labuschagne and Mr Woolley were workers whose activities in carrying out work were influenced or directed by the defendant in its capacity as the principal contractor for the project.

13.   On 1 March 2017 Mr Macpherson, Mr Hartigan, Mr McKay, Mr McDonald, Mr Labuschagne and Mr Woolley were undertaking piling works on the barge.

14.   On the barge, there were two items of equipment known as headstocks which were made up of two metal poles or piles with legs that were about 600mm in circumference, measured two metres high and approximately nine metres apart with a metal platform running from one pole to the other which platform weighed approximately two tonnes.

15.   The headstocks were standing in the upright position on the barge.”

14. Par 16 of the Second Amended Summons pleads particulars of the risk to workers as the risk of workers suffering serious injury or death as a result of being struck or crushed if the headstocks fell over.

15. Par 17 of the Second Amended Summons pleaded particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“17.   The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, as named in paragraph 16, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

(a)   undertaking a risk assessment, or ensuring that a risk assessment had been undertaken by Brady Marine, before any headstocks were removed. Such a risk assessment should have identified the risk arising from storing unsecured headstocks on the barge in an upright position and the control measures for eliminating or minimising the risk such as lying the headstocks on their sides, restraining the headstocks with chains, ropes, slings or straps or by other suitable means and by having a safety rule that no workers were permitted to work on the barge, or work on the headstocks while they were on the barge, until such time as the risk was eliminated or minimised; and/or

(b)   as a result of any risk assessment, ensuring that each of the measures identified (such as lying the headstocks on their sides, restraining the headstocks with chains, ropes, slings or straps or by other suitable means and by having a safety rule that no workers were permitted to work on the barge, or work on the headstocks while they were on the barge, until the risk was eliminated or minimised) were incorporated by Brady Marine into a safe work procedure, and obtain a copy of it; and/or

(c)   directing Brady Marine to ensure that the headstocks be laid down or restrained with chains, ropes, slings or straps or by other suitable means whilst workers were present on the barge; and/or

(d)   directing Brady Marine to enforce all of the measures identified (such as lying the headstocks on their sides, restraining the headstocks with chains, ropes, slings or straps or by other suitable means and by having a safety rule that no workers were permitted to work on the barge, or work on the headstocks while they were on the barge until the risk was eliminated or minimised) by directing Brady Marine to provide supervision, instruction and training concerning the risk and the means by which it would be controlled; and/or

(e)   prohibiting workers from being on the barge (except for the purpose of laying the headstocks down or restraining them) or undertaking work on the barge (except for the purpose of laying the headstocks down or restraining them) if the headstocks were not restrained or laid down on their sides; and/or

(f)   prohibiting headstocks from being stored on the barge if not properly secured.

(g)   requiring that the headstocks be removed from the barge before workers were permitted onto the barge.”

(Emphasis added)

16. Underlining has been added to some of the words in par 17 of the Second Amended Summons, as those words are particularly relevant to a legal issue considered below, under the heading “The Applicable Standard”.

17. Pars 18-19 of the Second Amended Summons plead that as a result of the defendant’s failures, the workers on the barge were exposed to a risk of death or serious injury and that the death of Mr Macpherson on 1 March 2017 was a manifestation of the risk.

The Relevant Law

General Principles

18. The parties agreed that the general principles of law which are applicable can be summarised as follows.

19. The objects clause in s 3 of the Act provides:

“(1)    The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by:

(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(h)   maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2)   In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

20. The offence is one of strict liability: s 12A of the Act.

21. The content of the duty is set out in s 19 of the Act which provides:

“(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

       while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

…

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

…

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

22. The meaning of “worker” is dealt with by s 7(1) of the Act which provides:

“A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a)   an employee, or

(b)   a contractor or subcontractor, or

(c)   an employee of a contractor or subcontractor, or

(d)   …”

23. Section 16 of the Act provides that more than one person can have a duty, and says:

“(1)   More than one person can concurrently have the same duty.

(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)   If more than one person has a duty for the same matter, each person:

(a)    retains responsibility for the person’s duty in relation to the matter, and

(b)   must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

24. Section 17 of the Act deals with the management of risks and provides:

“A duty imposed on a person to ensure health and safety requires the person:

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

25. The word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury – s 32(c).

26. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

27. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.

28. “Reasonably practicable” is defined in s 18 of the Act which provides:

“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including:

(a)   the likelihood of the risk concerned occurring, and

(b)   the degree of harm that might result from the risk, and

(c)   what the defendant knows, or ought reasonably to know, about;

(i)   the hazard or the risk, and

(ii)  ways of eliminating or minimising the risk, and

(d)   the availability and suitability of ways to eliminate or minimise the risk, and

(e)   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

29. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

30. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ.

31. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].

32. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

33. The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

34. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

35. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

36. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

37. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

38. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130].

39. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides:

“Imputing Conduct to Bodies Corporate

(1)   For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.”

40. Two matters of law were the subject of dispute and detailed submissions. They are dealt with separately below under the sub-headings “The Applicable Standard” and “Duties of a Principal Contractor”.

The Applicable Standard

41. Senior counsel for the defendant submitted that the duty under s 19 of the Act is informed by the terms of s 17, which has been reproduced above. Section 17 requires a person who has a duty to ensure health and safety:

“(a)    to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)    if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risk so far as is reasonably practicable.”

42. Senior counsel submitted that the standard required of a person conducting a business or undertaking (PCBU) under the Act is that of elimination. He submitted that what had been pleaded in the Second Amended Summons was a proposition that elimination or minimisation are alternatives (T 1111/23).

43. In written submissions, it was put that it is only where it is not reasonably practicable to eliminate a risk that a PCBU is permitted to minimise risk so far as is reasonably practicable – s 17(b). The written submissions said that the same approach was reflected in many of the Regulations made under the Act. Those particular Regulations were listed in par 5 of MFI 22 and were the subject of detailed oral submissions at T 1113-1117.

44. The defendant submitted (MFI 22, par 7):

“If a PCBU wishes to rely upon the minimisation of risk so far as is reasonably practicable in order to meet the duty imposed upon it by section 19 of the [Act], then it must first establish conclusively that it is not reasonably practicable to eliminate that risk. Where an allegation is made that a PCBU has failed to meet the duty imposed on it by section 19 in that it has not minimised a risk so far as is reasonably practicable, to be successful the prosecution must first prove that it was not reasonably practicable to eliminate that risk.”

45. It was submitted (MFI 22, par 8) that the Second Amended Summons should be considered only in respect of the measures pleaded in it that would have eliminated the pleaded risk. Thus some of the pleaded measures in par 17 of the Second Amended Summons would fall away.

46. Senior counsel for the defendant submitted that:

“If you advocate that eliminate and minimise are alternatives, you are, in fact, advocating a lesser standard than is required by s 17(a) because you are saying, ‘Well, if you didn’t eliminate, you could have done this to minimise’.” (T 1113/2-5)

47. Senior counsel for the defendant analysed the various subpars in par 17 of the Second Amended Summons and submitted that several of the pleaded measures would not have eliminated the risk, and thus should effectively be ignored because the prosecution had not sought to prove that the risk could be eliminated by certain measures.

48. In Written Submissions in Reply (MFI 29), senior counsel for the prosecutor submitted that the pleading should not be understood as a pleading in the alternative in the traditional sense of pleading two separate offences in the alternative – par 3. It was submitted that while the duty is defined in s 17 of the Act, the offence is created by s 32 of the Act. The offence is one of “breach of duty”. There are not separate offences for failing to eliminate so far as is reasonably practicable on the one hand, and failing to minimise so far as is reasonably practicable (MFI 29, par 8). It was also pointed out that the maximum penalty is the same whether a defendant is found to have failed to eliminate so far as is reasonably practicable or to have failed to minimise so far as is reasonably practicable, or both.

49. It was also pointed out (MFI 29, par 9), that the conjunctive between s 17(a) and s 17(b) is the word “and” and not the word “or”. The submission was:

“In other words, the dutyholder is required to satisfy (a) so far as is reasonably practicable and (b).”

50. The prosecutor pointed out (MFI 29, par 25) that:

“a.    A failure to eliminate and a failure to minimise are not separate duties under the Act;

b.   A failure to eliminate and a failure to minimise are not separate offences under the Act; and

c.    A failure to eliminate and a failure to minimise carry the same maximum penalty.”

51. I reject the submission for the defendant on this matter and I accept the submission of the prosecutor. Section 19(1) of the Act requires a person conducting a business or undertaking to “ensure, so far as is reasonably practicable” the health and safety of workers.

52. Section 17 of the Act sets out how a person may discharge a duty imposed to ensure health and safety. Section 17 does not provide two distinct alternative means of ensuring health and safety. It requires the person to eliminate risks to health and safety (so far as is reasonably practicable) and if that cannot be achieved, then to minimise those risks so far as is reasonably practicable. Section 17 therefore sets out a single standard which has to be met by a person with a duty to ensure health and safety.

53. Paragraph 17 of the Second Amended Summons has been reproduced (with underlining) in par [15] of this judgment. The underlined words demonstrate that the prosecutor alleges:

1. That there were a number of measures which could have been taken, and that it was not asserting that all had to be taken;

2. Each of the pleaded measures was alleged to have been reasonably practicable;

3. The pleaded measures would have eliminated, or alternatively minimised the risk, if it was not reasonably practicable to eliminate the risk;

4. The use of the words “and/or” after particulars (a)-(e) inclusive showed that not only was the prosecutor alleging that there were a number of measures which should have been taken, but that some or all of those measures could have been taken in combination.

54. The way the Second Amended Summons has been pleaded is perfectly regular and in my view accords with the plain meaning and intent of the statute.

55. Senior counsel for the defendant submitted that if the prosecutor wished to allege elimination or minimisation as alternatives, it should have brought two charges (T 1211/23-45). It was submitted that the way the charge was pleaded “there is now not a charge known to law” (T 1212/10).

56. For the same reasons as appear above, I also reject that submission.

57. I regard my conclusion as consistent with the decision of the Court of Criminal Appeal in Bulga at [106] – [114] and the decision of Judge Kearns SC in Orr v Perilya Broken Hill Limited [2018] NSWDC 28 at [278] – [287].

Duties of a Principal Contractor

58. An admission was made that the defendant was the principal contractor at the BFH site. Brady Marine was a specialist contractor in marine piling and a specialist contractor in working from and on a barge. Brady Marine provided evidence of its extensive written safety system to the defendant. In those circumstances, it was submitted that the defendant was entitled to rely upon Brady Marine for the maintenance and proper implementation of those systems. Further, it was submitted that it was not reasonably practicable for the defendant to be involved in any capacity in the application of those systems to every aspect of the work performed on the Maeve Anne by Brady Marine (MFI 22, par 22).

59. Reference was made to several decided cases which have considered the duty imposed upon a principal contractor, when there is a specialist sub-contractor on site carrying out specialised work.

60. In Hamersley Iron Pty Ltd v Robertson (Unreported, Supreme Court of Western Australia, Steytler J, 2 October 1998), the facts were that a worker was killed when a reclaimer, which is a specialised piece of mining equipment, collapsed.

61. A magistrate had convicted the appellant of a breach of s 9(1)(a) of the Mines Safety and Inspection Act 1994 (WA). That section provided as follows:

“An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must –

(a)    provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer’s employees are not exposed to hazards …”

62. On appeal Justice Steytler of the Supreme Court of Western Australia said (at p 19):

“It seems to me that s 9, in requiring an employer, so far as is practicable, to provide a safe working environment, imposes a duty, personal to the employer, not only to do what is reasonably practicable for the purposes of obtaining that objective in the course of its own activities but to ensure, where that is reasonably practicable, that reasonable care is taken by subcontractors whose assistance is necessary in circumstances in which their failure to take such care might expose employees of the employer to hazards.

However that cannot mean that an employer can never rely upon what is done by a suitably qualified expert engaged by it.”

63. A p 20 his Honour said:

“Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should. Moreover, in considering whether it did what it could, so far as was practicable, to ensure that those upon whom it relied in turn exercised reasonable care, its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account. If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer, who has such knowledge of the matters specified in s 9(1)(b) of the Act as might be expected to be had by employers of its kind, to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more.”

64. The court was also referred to the decision of the Court of Appeal of the Supreme Court of Western Australia in Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117. The case involved risk which arose when damage was done to residential units, known as “dongas”, caused when Cyclone George passed across the Pilbara coast in Western Australia in March 2007. The appellant (Laing O’Rourke) had engaged Pilbara Infrastructure Pty Ltd to construct a railway line associated with an iron ore mine and a port. The dongas were located in a camp (known as RV1) for the workers engaged on the building of the railway line. Laing O’Rourke had not constructed the facilities at the camp. That had been done by a building company in accordance with plans and specifications approved by the local authority. Those plans and specifications contained a significant error. The buildings were not strong enough to withstand the wind load of a cyclone, such as could be expected in that area. The dongas were not designed or built to withstand winds of the force required by the Australian Standard for the relevant location. The foundations of the dongas were structurally deficient.

65. The court noted that s 19(1) of the Western Australian legislation required an employer, so far as is practicable, to provide and maintain a working environment in which the employees of the employer are not exposed to hazards. The word “practicable” was defined in the legislation to mean reasonably practicable having regard to certain prescribed matters.

64. The Court of Appeal said at [31] that the words “reasonably practicable” are ordinary words, bearing their ordinary meaning which simply called for the making of a value judgment in the light of all the facts: Slivak at 322 per Gaudron J.

65. The Court of Appeal approved the decision of Justice Harper in Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124 where his Honour said of an equivalent Victorian provision:

“The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.”

68. The Court of Appeal noted at [35] that the duty, so far as is practicable, to maintain a safe workplace may involve a consideration of matters which are beyond the employer’s own area of expertise. The employer’s lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was reasonably practicable in the circumstances.

69. The Court of Appeal at [35] quoted with approval the following passage from R v Associated Octel Ltd [1994] 4 All ER 1051 at 1063:

“… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.

But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken …

The question of what is reasonably practicable is a matter of fact and degree in each case.”

70. The Court of Appeal acquitted Laing O’Rourke as there was nothing to indicate to it, prior to the accident, that the dongas were unsuitable for use as a safe refuge during a cyclone. There was nothing to suggest to a reasonable employer that it should have appreciated or foreseen that the accommodation was not properly designed and built to withstand the weather conditions of a cyclone. The dongas had been built for a reputable and competent organisation with good quality control and had met the requirements of the local authority, including in relation to building standards for cyclone-affected areas. Laing O’Rourke was a construction engineer but not a structural engineer. It did not have the expertise to assess the suitability of the dongas for cyclonic conditions. There was no evidence that even if they had enquired about the construction of the dongas, they would have been told anything other than that they had been constructed in accordance with plans and specifications approved by the Shire and applicable building standards. There was no evidence that Laing O’Rourke could have inspected the dongas before occupying the residential camp.

71. The court was also referred to a case involving the same cyclone and the same dongas. This was Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99. Many of the authorities considered in Laing O’Rourke were again recited. The Pilbara Infrastructure Pty Ltd was in a different position to Laing O’Rourke, because it was a principal, and it had entered into a contract for the construction of the dongas.

72. In Pilbara Infrastructure Justice Hall said at [108]:

“It is useful to note in this context that the fact of making assumptions is not itself inappropriate; it is the circumstances in which any such assumptions are made that may be relevant in determining whether an employer or principal has done all that is reasonably practicable in the circumstances. It is unlikely to be enough for a person to merely assume that someone else will attend to safety requirements, but if such an assumption is based upon inquiries made, assurances given, a reasonable belief as to the skills of those responsible for construction and a reasonable belief that regulatory approval has been obtained for the buildings, it may be well-founded.”

(Emphasis added)

73. Justice Hall also said at [110]:

“The duties of the respondents in the present case cannot be equated with the appellant in Laing O'Rourke v Kirwin. As I have noted, the respondents contracted to have RV1 constructed. This meant that they had some level of control over what was built and who built it. Since RV1 was always intended to accommodate workers and to provide a safe refuge for them, there was a duty to ensure that, so far as was reasonably practicable, the camp was built in such a way as to guard against risks of harm. Whether that duty was breached depends upon an assessment of the circumstances pertaining to the respondents.”

(Emphasis added)

74. The following principles can be extracted from these cases:

1. The legislation imposes a duty on a PCBU not only to do what is reasonably practicable to ensure safety, but to take reasonable care that sub-contractors whose assistance is necessary do not expose workers to hazards.

2. A PCBU can call upon expertise which it does not itself have, and its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account.

3. If the task is one which demonstrably falls outside the expertise of the PCBU, and if it appears that the independent contractor has been carefully and safely performing its work, then it would ordinarily be difficult to conclude that the PCBU has breached the duties imposed upon it by the legislation; it would not, in circumstances of that kind, ordinarily have been practicable for the PCBU to have done more.

4. The court must look at the facts of each case, not with the benefit of hindsight, nor with the wisdom of Solomon, but remembering that one of the chief responsibilities of the PCBU is the safety of those who work for it.

5. The question of control over the contractor is relevant to the determination of what is reasonably practicable.

6. If a PCBU engages a person who has the skill and expertise, including knowledge of appropriate safety precautions which the PCBU itself may not have, the PCBU may be entitled to rely on the contractor to see that the work is carried out safely.

7. However, there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken.

8. It is unlikely to be enough for a person to merely assume that someone else will attend to safety requirements, but if such an assumption is based upon inquiries made, assurances given, and a reasonable belief as to the skills of the contractor, it may be well-founded.

9. The question of what is reasonably practicable is a matter of fact and degree in each case.

75. In considering the duty to be imposed upon a principal contractor, it is necessary to keep in mind s 16 of the Act which provides that more than one person can have a duty and that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty. Section 16(3)(b) requires the court to consider “the extent to which the person has the capacity to influence and control the matter”.

76. The prosecutor referred to cl 315 of the Work Health and Safety Regulation 2011 (NSW). The clause requires the principal contractor for a construction project to manage risks to health and safety associated with the storage, movement and disposal of construction materials and waste at the workplace. There is a Note at the foot of cl 315 giving a reference to s 20 of the Work Health and Safety Act 2011. Section 20 of the Act provides that a person with the management or control of a workplace must ensure, so far as is reasonably practicable, that anything arising from the workplace is without risk to the health and safety of any person.

77. As senior counsel for the defendant pointed out, the defendant is not being prosecuted for a breach of cl 315 of the Work Health and Safety Regulation 2011 or of s 20 of the Work Health and Safety Act 2011. Nor do those provisions impose an absolute duty upon a principal contractor. The prosecutor acknowledged that those provisions still left room for the defendant to argue that it sought to manage the risk by reliance upon Brady Marine (MFI 29, par 47).

78. Because the question of what is reasonably practicable in the context of a principal contractor and a sub-contractor with specialised skill is a matter of fact and degree, I will defer further consideration of the duties of the defendant in its role as a principal contractor until after I have recorded my findings of fact later in this judgment.

Barangaroo Ferry Hub Project

79. The Barangaroo Ferry Hub Project consisted of the construction of two ferry wharves at Barangaroo, each with two berthing faces, and ancillary facilities (PX 16, Tab 40, p 10). There were two work sites, being the Barangaroo site and the White Bay staging facility. At the Barangaroo site most of the works were to be carried out from marine based plant. The White Bay staging facility was a “gateway” to Barangaroo. All deliveries of material and workers from White Bay to Barangaroo were to be conducted via barges or working boats. Piling works to enable the fabrication and construction were to be carried out by specialised piling equipment operated entirely from barges. This was the work for which Brady Marine contracted.

80. The shoreline at Barangaroo ran roughly north-south. Each ferry wharf was to run from the shoreline in a north westerly direction, so that each wharf was angled to the shore.

The Arrestors

81. At the end of each wharf closer to the shore, there were to be two structures constructed known as Arrestors. These Arrestors were concrete structures, designed as a stopper or buffer, to prevent a ferry running into the shore if it overshot the wharf. There were to be four Arrestors, one at the end of each berth. From north to south, the Arrestors were numbered 1, 2, 3 and 4.

82. Construction of each Arrestor required Brady Marine to install temporary piles and what it called a “temporary bridge”. The temporary piles were installed using a vibro-hammer. Once two piles were installed it was necessary to span or bridge the gap between the two piles, so that equipment and material could be supported.

83. The temporary bridge between two piles was known as a headstock. A headstock consisted of two circular tubes which stood upright. A headstock beam was welded onto the top of each tube.

84. Arrestors 1, 2 and 3 used sleeved headstocks. The upright circular tubes had a greater diameter than the temporary piles. The upright tubes thus acted as sleeves and fitted over the temporary piles. This meant that for Arrestors 1, 2 and 3, the headstocks could be lowered onto the temporary piles and lifted off the temporary piles, once they were no longer required for the support of plant and materials used in the construction of the Arrestors. These sleeved headstocks were not welded to the temporary piles. Rather, they were lifted above and onto the temporary piles and remained there under their own weight during the construction process. Once construction had finished and the headstocks were no longer required, they were lifted off the temporary piles without the need for any cutting.

85. The technical details in relation to the headstocks used for the construction of the Arrestors were set out in the Brady Marine Work Method Statement Temporary Bridge Installation Document No: BR181WMS-3 (PX 14, Tab 22).

86. The construction of Arrestor 4 proceeded on a different basis. For reasons to do with the shallower rock and the smaller overburden available at Arrestor 4, the sleeved headstock arrangement could not be used. The temporary piles supporting the bridge had to be thicker. Once installed those temporary piles would not have the stability of the temporary piles used at Arrestors 1, 2 and 3, where the piles could be driven deeper. Section 14 of the Work Method Statement referred to immediately above dealt with the construction particulars for Arrestor 4. As previously recited, sleeved headstocks could not be used at Arrestor 4. Instead, cylindrical tubes were to be welded to the temporary piles. In turn, headstock beams were to be welded on top of the cylindrical tubes. Thus the cylindrical tubes were welded at the bottom to the temporary piles and welded at the top to the headstock beams.

87. Once the headstocks at Arrestor 4 had served their function, they could not simply be lifted off like the headstocks at Arrestors 1, 2 and 3. Instead, they needed to be cut away from the temporary piles. The method by which this was done by Brady Marine is set out in more detail below.

Headstocks

88. From time to time during the course of the oral evidence there was some confusion over the use of the term “headstock”. Most witnesses used the word to refer to the entire structure consisting of two upright cylindrical tubes, spanned by a beam, and cross-braced between the tube and the beam. Sometimes a witness referred to the beam itself as the headstock. However, the preponderance of evidence was that the entire structure was the headstock and that is the sense in which the term will be used in this judgment. When the judgment refers only to the beam between the two upright cylindrical tubes, that piece of the structure will be called the “beam”.

89. The prosecutor tendered a scale drawing of the two headstocks removed from the temporary piles at Arrestor 4 (PX 16, Tab 48). Each of the two cylindrical tubes was 810mm in diameter. Each section of tube was two metres high. The distance between the centre of the two tubes was six metres for the landward headstock and 5.2 metres for the seaward headstock. Welded to the top of the two cylindrical tubes were two I-beams which ran parallel and which were plated together. These beams were 10 metres long so that each extended past the centre of each cylindrical tube by two metres. On each headstock were two K-Brace Struts. These ran at a 45 degree angle from the centre of the beam to the bottom of each cylindrical tube.

90. The best photograph of the two headstocks, standing upright on the deck of the Maeve Anne, was taken by Mr Hartigan on the morning of 1 March 2017 (PX 14, Tab 7). This photograph shows that on the top of the beams on each headstock, there were two upright metal structures which were called “guides” or “stabbing guides”. These were welded to the of the beams and were used to locate other structures upon the beams.

91. As will be described more fully below, just prior to the incident, Mr Hartigan had oxy-cut the four guides from the top of the two headstocks (two on each headstock). The incident which led to the death of Mr Macpherson occurred during the course of the attempted removal of the guides from the top of the beams, using the crane.

The Maeve Anne

92. The Maeve Anne barge was a rectangle measuring 48 metres in length and 24 metres in width. It was 2.20 metres deep and had a frame spacing of 2.40 metres throughout (PX 14, Tab 28). The deck of the barge was steel. It was reinforced for heavy equipment over the centre of the vessel. This reinforcing was to accommodate a Kobelco CKE 250 crawler crane with at 48 metre long boom and 90 tonnes of counterweights fitted. The total crane weight was 221 tonnes. The crane operated along the centre line of the barge with the tracks parallel to the centre line at all times.

The Sub-Contract Agreement

93. The defendant and Brady Marine entered into a sub-contract agreement dated 28 January 2016 (PX 14, Tab 2). The sub-contract agreement referred to the Head Contract between the defendant and its client Transport for NSW. The Head Contract was for work on the Barangaroo Ferry Hub Project. The site of the project was “located at the southern end of the western foreshore of the Barangaroo development site located along the Sydney Harbour foreshore, between King Street Wharf and Walsh Bay”. The sub-contract sum was $2,849,668.41. The sub-contract was to commence on 3 February 2016. The date for substantial completion was 28 July 2016 and the date for practical completion was 28 October 2016.

94. Brady Marine was engaged by the defendant to perform piling work at the BFH.

95. Clause 21.1 of the sub-contract gave the defendant a right of access to any work prepared for, used in, or carried out under the sub-contract.

96. Clause 22 of the sub-contract was headed “Safety and Environment”. Clause 22.1 required Brady Marine to control and maintain systems and working conditions at the site to “ensure the health and safety of persons affected by the Sub-Contract Works”. Brady Marine had to fully comply with its own Safety and Environmental Management Plans “as submitted to McConnell Dowell for review prior to commencement of any work on the Site, and with any other safety rules, instructions and regulations from time to time issued by McConnell Dowell or the Principal, including those relating to Site conduct generally with which the Sub-Contractor had been directed to comply”.

97. Clause 22.4 of the sub-contract provided as follows:

“Notwithstanding that the Sub-Contractor has hereby, and as an essential condition of the Sub-Contract, the responsibility for controlling its legal and contractual health, safety and environmental obligations, where the Sub-Contractor is carrying out work or is about to carry out work, that in McConnell Dowell’s reasonable judgement, is unsafe or may cause environmental harm, McConnell Dowell may serve notice to that effect on, or give an oral direction to, the Sub-Contractor, requiring the Sub-Contractor to stop work and to rectify the situation within the time stipulated, or if not so stipulated, immediately.”

98. Clause 22.6 of the sub-contract provided as follows:

“For the avoidance of doubt and notwithstanding anything else contained in this Sub-Contract, the Sub-Contractor has control of, and ultimately responsibility for, the health and safety of the Sub-Contractor’s employees, and the health and safety of others who may be affected by the activities of the Sub-Contractor in carrying out the Sub-Contract Work, and nothing in this Sub-Contract relieves the Sub-Contractor of this obligation. Compliance by the Sub-Contractor with the requirements of this clause 22, shall be at the Sub-Contractor’s cost.”

99. Appendix A set out the “Scope of Sub-Contract Works”. It required the sub-contractor to “provide a sufficiently experienced crew and supervisor to complete the works”. The defendant was obliged to supply suitable access arrangements to the site, including safe access to water to allow personnel to enter boats at both Darling Harbour and White Bay.

100. Part of Appendix A was headed “Health, Safety & Environmental Requirements”. Immediately under that heading the following was stated:

“Key Risks

A risk assessment of the project has identified the following areas will need particular care when undertaking the Sub-Contract Works safely:

(a)   Working in close proximity to (and over) water

(b)   Lifting and handling of piles

(c)   Operation of plant on marine vessels

Establishing a positive risk management culture is an important objective for this project. Mandatory attendance at Risk Workshops may be requested of any Subcontractor intending to work on the site.”

101. An issue arose during the case as to whether the work being done upon the Maeve Anne when the incident occurred was work required under the sub-contract, or was work for the benefit of Brady Marine alone. For that reason, it is to be noted that cl 20 of the sub-contract headed “Clean up of site” provided as follows:

“20.1    In addition to, and without limiting the generality of, the Sub-Contractor’s obligations under cll 3.2 and 3.3, the Sub-Contractor shall:

(a)   at all times during the execution of the Sub-Contract Works, promptly clear away and remove from the Site at its expense, all rubbish resulting from its execution of the Sub-Contract Works and keep the Site clean and tidy; and

(b)   upon completion of the Sub-Contract Works, leave the Site in a clean and tidy condition and at its expense, remove from the Site all equipment and any other property or surplus materials supplied by the Sub-Contractor under this Sub-Contract.”

102. Clause 20.2 provided that if Brady Marine failed to comply with the provisions of cl 20.1, the defendant could carry out the work and the defendant could charge Brady Marine for the cost of compliance. By cl 20.3 any surplus materials removed by the defendant in accordance with cl 20.2 were to be stored at the expense of Brady Marine, and the defendant could sell such material after 14 days and retain the proceeds of sale.

The Supplemental Agreement

103. By the second half of 2016 the defendant and Brady Marine had fallen into dispute about the pace of work on the BFH project and the cost of the piling work. The parties agreed to settle their differences by a Supplemental Agreement made on 26 September 2016 (PX 14, Tab 3). The Supplemental Agreement referred to the Head Contract and the sub-contract agreement and recited that various disagreements had arisen in connection with the sub-contract which the parties had agreed to settle on the basis set out in the Supplemental Agreement.

104. The Supplemental Agreement contained provisions for a Guaranteed Maximum Price.

105. Clause 1(k) defined the “Remaining Sub Contract Works” to mean all work required to complete the following:

“Arrestor 4 – Install 4 number raked piles including sockets, temporary works platform installation comprising 4no temp 610 dia piles, 2x headstock beams, and temporary bracing above and below water level… Removal of Arrestor Temporary works, including removal of 2no headstock beams, 4no 610 dia piles and temporary bracing below water level on A1, A2, A3 & A4; Design, Supply and install Bracing as required; Removal of bracing; Cut off piles to required levels and dispose of excess pile lengths.”

106. Clause 3 of the Supplemental Agreement set out the obligations of the sub-contractor. Clause 4 dealt with payment.

107. Clause 4(m) said:

“For the avoidance of doubt the Contractor will retain ownership of the temporary piles for Arrestor 3 & 4 purchased prior to the Effective date.”

108. Clause 4(n) said:

“For the avoidance of doubt the Sub-Contractor will retain ownership of ‘headstocks’ purchased prior to the Effective date.”

109. Clause 5 of the Supplemental Agreement said that the provisions of the Sub-Contract Agreement remained in full force and effect.

The One Team Approach

110. After the defendant and Brady Marine resolved their disputes and entered into the Supplemental Agreement, they embarked upon what they called the One Team Approach. The management structure is best illustrated by a document entitled “Barangaroo Ferry Hub MCD/Brady Marine Team” (PX 16, Tab 37). This document, which contains the logos of both the defendant and Brady Marine, set out the management hierarchy. At the top was the defendant’s Project Manager Mr Dennis Fitzgerald. Immediately below him was the defendant’s Marine Manager Mr Jason Pickersgill. Below Mr Pickersgill were two executives of the defendant being Mr McCreedy (the Construction Manager) and Mr Rob Kreft (the HSE Manager). Mr McCreedy did not give evidence and was not the subject of any evidence.

111. Below the level of Mr McCreedy and Mr Kreft were four people. The first was Mr Matt Mynott, the Project Engineer employed by the defendant. The second was Mr Francois Labuschagne, the Senior Project Engineer employed by Brady Marine. The third was Mr Jason Muntz, the Barge Supervisor employed by Brady Marine. The fourth was the position of “HSE Advisor”. There was no name in the chart provided for this position.

112. Immediately below Mr Muntz was Mr Spencer McDonald, a Leading Hand engaged by Brady Marine.

113. The chart also listed “Brady Marine Offsite Support”, which included Mr Pat Griffin as “HSEQ Manager”.

114. The prosecutor tendered a series of PowerPoint slides entitled “Barangaroo Ferry Hub MCD/Brady Marine Integrated Team Plan to Completion 4 October 2016”. These slides contained the logos of both the defendant and Brady Marine. The slides were sent by Mr Pickersgill to an officer of the client Transport for NSW. Mr Pickersgill said in his covering email (PX 16, Tab 41, pp 1-2):

“Further to our discussion this morning, please see attached [being a reference to the attached slides] and below a number of recent changes (over the last month) to the MCD BMC strategy for moving forward. This has been happening behind the scenes in an effort to improve current levels of productivity and safety as a whole and strategized through lessons learned on the project to date. The changes are specific to the updated working arrangement between MCD and BMC for marine works. This is a brief rundown of where we are heading during this transition to create a united team with a common goal.

…

We hope this demonstrates that MCD are actively making a positive effort to change the current structure for the betterment of the project in all areas and complete the job in a timely manner with significant focus of safety, environment, quality and community understanding associated with the legacy of the works.”

115. The version of the chart of management contained in the slides was different to the document earlier summarised in one respect. In the box for the position of “HSE Advisor”, there appeared the words:

“(Part time)

Ted Robbins [sic]”

116. One of the slides (PX 16, Tab 41, p 21) was headed “Health, Safety & Environment (HSE)”. This slide also contained the logos of the defendant and Brady Marine. It said:

“●    Safety is Every Thing To date – we have had incidents but no injuries – MTI or LTI

●    Incidence [sic] although minor have large impact with TfNSW

●    Everybody needs to be aligned and committed to higher performing Health Safety Environmental Culture

●    Standards are high – need to follow process

●    Planning, Planning & More Planning is key, progress will only be made with timely submission of documentation

●    Daily Prestart, Weekly Inspections, SWMS, JSEA’s S.T.A.R.T. all very important

●    Everybody needs to be aligned, disciplined and committed”

117. Mr Labuschagne sent an email on 24 November 2016 to Mr Fitzgerald (PX 16, Tab 42, pp 1-2) concerning a decision to defer driving pile W107. His email included the following:

“The planning by the Group needs [to] show efficiency, as we spoke about this yesterday at team meeting, 100 years of experience, how must are we using for planning [sic], I repeat this is not a one man band, One Team approach is need [sic] to make all Marine Works happen seamlessly.

Talk is cheap, actions speak louder than words let [sic] move forward together.

BMC want Barge & Equipment back, MCD need piling complete, it’s that simple.

My team and I are wholly focussed on achieving the program and with the exception of today have been able to achieve our targets over the preceding number of weeks consistently. The Brady team will endeavour to take advantage of any reasonable and safe opportunity to advance the works, integrated with the Macdow team at Barangaroo.”

118. Mr Fitzgerald responded to Mr Labuschagne’s email by his own email on 25 November 2016 (PX 16, Tab 42, p 1). Writing to Mr Labuschagne, Mr Fitzgerald said:

“The Marine progress is based on a One Team approach and consultative and collaborative support of all Marine Works with planning. This is not the “Brady Team” that is one reason why we have a GMP in place which is to serve the Best for Project results for the Barangaroo Ferry Terminal Project, BMC & MCD.

The external delays where possible will be managed by the Group, it must be pointed out that this is not your team we are a collective for the Marine Works, until you fully understand the “Whole Concept of One Team”, we shall never get the planned results that are given to client Daily 4-00pm, with weekly look ahead, three weekly look ahead.

See attached snippet for Contractors Performance Report delivered by TfNSW in September, change is required to meet planned events/tasks.

There need to be better results, safety is paramount and will not be compromised, better planning is everything, meeting timelines/target must be achieved.”

Documented Safety System at the Barangaroo Ferry Hub Project

Project Work Health and Safety Management Plan

119. The overarching document in the safety system was the defendant’s Project Work Health and Safety Management Plan (PX 16, Tab 40). In the document the defendant was defined as the “Contractor”. Section 1.5 of the document recited that the work health and safety processes had been developed to meet the requirements of the Act and the Work Health and Safety Regulations 2011 (the Regulations). The document stated that the defendant would monitor, maintain and demonstrate compliance with all obligations according to the Contract as well as with all relevant legislation, Regulations, Acts, Standards, Codes, specifications and procedures necessary to carry out the work on the Contract.

120. Section 2.1 of the document stated that the objective of the plan was to ensure that work health and safety activities were identified, assessed, allocated, managed and mitigated so that the project personnel, equipment and infrastructure and the wider public were not harmed as a result of the project delivery activities.

121. Section 3 of the document dealt with “Hazard Identification, Risk Assessment & Control”.

122. Section 3.4 of the document dealt with Safe Work Method Statement (known as SWMS). It said:

“A SWMS will be developed, or obtained from subcontractors and reviewed, for all activities identified as required in the risk assessment that are not addressed within specific plans e.g. Traffic Management and for all High Risk Construction work. The HSE Risk Management Procedure details this process.

One of the key steps in ensuring a robust risk management process is the cascading of risk from higher-level documents into activity level controls. As SWMS are the basic form of activity level control, it is important that any risks identified in the Risk Assessment are carried through to SWMS. The SWMS Review Checklist has specific prompts to ensure that this is completed on all SWMS.

SWMS are to be provided to MCD Principal Contractor, and they shall be provided 2 weeks before commencing works.”

123. Section 3.5 of the document required a SWMS register to be kept and maintained. Section 3.6 of the document provided that sub-contractors were responsible for the development of each SWMS for their scope of work.

124. Section 3.9 of the document dealt with “Changes to work activity” and said:

“Where changes or change management are identified as being required they are to be made immediately to the SWMS. A review of the SWMS shall take place prior to the proposed changes being implemented. The SWMS shall be reviewed if there are changes to the work, systems associated with the work, if new or additional hazard information is identified or at the request of a Health and safety representative. This can also be captured on a pre-start form or a START card.”

125. Section 3.11 of the document dealt with “hazard reporting”. All hazards that were identified were to be reported to the supervisor immediately.

126. By s 3.13 of the document, a sub-contractor had to submit a SWMS before work commenced. The SWMS had to be reviewed by a person nominated by the defendant.

127. Section 4.28 of the document dealt with “Housekeeping”. It said:

“Materials and equipment must be stacked in such a manner so as to prevent dislodgement. A housekeeping inspection shall be carried out by the Supervisor as part of their daily site inspection. Any issues arising from these inspections should be corrected immediately where possible.”

128. The prosecutor tendered the defendant’s document entitled “Safe Work Instructions Stacking and Storage of Materials” (PX 14, Tab 27, p 1). This document stated:

“Materials must be stored in a stable condition, on the base rather than in the upright position e.g. concrete rings and pipes.”

129. On its face this document did not apply to work done on the Maeve Anne. It dealt with the hazard “Stacked materials in store”. Several of the instructions set out in the document clearly relate to the stacking of materials in some kind of warehouse situation e.g. “walkway areas”, “a stack or storage”, “reduce double handling”. While the document contains a common sense list of precautions to be taken when stacking or storing materials, it is not a document directed towards the kind of work done on the Maeve Anne, but it is a document that establishes that the defendant itself was aware of the general need to store materials in a safe and secure manner.

130. Section 5.1 of the document was headed “Barangaroo Safety Golden Rules”. It referred the reader to a further document entitled “Project Safety Golden Rules”.

131. Section 9 of the document was headed “Consultative Arrangements and Communications”. The first procedure outlined was daily pre-start meetings. All on site employees and sub-contractors involved in construction operations were to attend pre-start meetings and sign an attendance sheet. The matters to be covered in a pre-start meeting were set out as follows:

“●   Raise and address any WHS concerns from the previous shift

●    Inform of any areas with significant risk for the coming shift

●    To be a forum to raise WHS issues

●    To discuss daily site activities

●    To co-ordinate works and interfaces such minimising hazards [sic]

●    Daily pre-start meeting minutes/form shall be kept.”

132. Section 10 of the document was also headed “Consultative Arrangements and Communications”. Section 10.6 was headed “Site Inspections”. It said:

“Regular inspections are to be carried out in all Project work areas in line with the following including:

●   Daily site visitation – by Management personnel.

…

Sub-contractors and the Principal shall be informed of the results of inspections and audits via the sites communication processes e.g. toolbox, notice boards, HSE committee meetings (as applicable) etc.”

Brady Marine Project Construction Safety Plan

133. This document commenced with a Health and Safety Policy Statement (PX 19, p 4). It said that Brady Marine “specialises in the delivery of technically demanding civil projects, predominantly marine infrastructure”. The policy statement spoke of maintaining a positive commitment to health and safety in all aspects of the business. The document related to the installation of marine steel piles for the BFH project (p 7).

134. At p 11 of the document one activity was “ensuring audits and inspections occur”. It was the task of the Safety Manager Mr Griffin to develop an audit schedule. There were to be daily supervisor inspections and weekly inspections to occur and be recorded. Mr Griffin later gave evidence about who was to carry out these tasks.

135. On p 13 of the document, implementing work health and safety requirements required the supervisor to check the work area and stop any dangerous activities. All employees were empowered to stop unsafe work practices.

136. Section 14.1 of the document (p 54) dealt in more detail with inspections and audits. It said:

“The project team shall inspect and monitor the project in the following manner as a minimum:

●    Daily – Supervisor to monitor the works daily and record any actions required or issues addressed in the site diary.

●    Weekly – Project Manager to conduct weekly formal site inspections using Form (SF020), Weekly Inspection checklist.

…

When an inspection identifies a safety hazard that cannot be rectified immediately, the inspection document shall identify who has been delegated the responsibility of rectifying the hazard and a time frame for rectification measures to be implemented. Copies of the report shall be given to applicable persons at the end of the inspection.”

Safe Work Method Statements

137. By December 2016 Brady Marine had created, and supplied to the defendant, 48 SWMSs covering different topics. They are listed in the SWMS register (PX 15, Tab 35).

138. SWMS 06 concerned Hot Works. SWMS 10 concerned Gas Cutting and Welding. Those two SWMSs applied to the work done by Mr Hartigan as a boilermaker.

139. SWMS 43 related to “Temp Bridge 4 Construction”. This concerned the unique construction method required for the piles and headstocks at Arrestor 4.

140. SWMS 04 dealt with General Crane Works (PX 14, Tab 20). The version of the SWMS in force at the time of the incident was Revision D dated 21 February 2017. The SWMS was reviewed fortnightly. It lists six people who were consulted on its development. This included Mr Labuschagne, Mr Griffin and Mr Jason Muntz. The person responsible for monitoring the crane activity was Mr Jason Muntz as the Supervisor.

141. The SWMS set out a series of steps applicable to General Crane Works, as follows:

1. all personnel to attend the daily pre-start meetings and sign onto the pre-start forms, and fill out START Cards before the activity commenced.

2. planning the lift.

3. inspect crane.

4. assess the load.

5. evaluate weather conditions.

6. crane operations.

7. crane operation.

8. prepare rigging for the lift.

9. slinging loads.

10. lifting of man boxes.

11. safe use of rubbish skips.

12. re-fuelling of plant and equipment.

13. McConnell Dowell critical lift permit.

14. re-position crane by walking along the crane tracks.

15. failure of SWMS.

142. Step 15 was designed to deal with any hazards not identified or where the SWMS had not been implemented correctly. Under the heading “Control Measure”, the following appeared:

“Any hazards not identified in the SWMS will result in the task being stopped and the additional hazards reviewed and controls developed. Task observations to be performed to ensure the SWMS is being correctly followed.

Brady START Cards to be completed for each task, every day to assess any other hazards in the work area.

START Card Reviews after each break (smoko, lunch etc) to take account of any potential changes to the work environment or additional hazards that arise during the day and may not have been recorded at morning prestart.

Brady pre-start meetings to review and address [any] hazards identified during the previous day.”

Pre-start Meeting on 28 February 2017 and Minutes

143. There were two kinds of pre-start meetings at the Barangaroo Ferry Hub project. The defendant conducted its own pre-start meetings which were attended by a representative of each sub-contractor on site. One of the main purposes of these pre-start meetings was to inform the defendant of the work each sub-contractor would be doing that day, to make sure that the work of one sub-contractor did not interfere with the work of another.

144. The second kind of pre-start meeting was that held each day by Brady Marine. It was attended by all personnel on the Maeve Anne. Minutes were kept of the pre-start meeting on the Maeve Anne held on 28 February 2017 (PX 14, Tab 18). The minutes dealt with six matters recorded in boxes. Box 1 was “Yesterday’s Activities”. There was nothing recorded in Box 1. Box 2 was “START Card Review”. Two matters from the previous day’s START Cards were reviewed and discussed. One was vessel operations and the second was pinch points.

145. The third box listed “Today’s Activities”. Activity 1 was “Remove lifting frame – Arrestor 4”. The applicable SWMS was 04 General Crane Works. Activity 2 was “Divers remove remaining clamps at A4”. This required a diving permit, and the applicable SWMSs were noted.

3. The crane driven by Mr Woolley was used during this task.

4. The crane had four chains hanging from the auxiliary hook.

5. Mr Macpherson rested a ladder on the right-hand end of the headstock which was closer to the water.

6. Mr Macpherson hooked one of the chains up to the guide, signalled to Mr Woolley and the guide was lifted away from the beam.

7. Mr Macpherson put the ladder against the left-hand side of the headstock closer to the water, attached a different chain and the guide was lifted away from the headstock.

8. Mr Macpherson carried out the same operation with the third guide, which was removed by the crane and the chain from the beam of the headstock closer to the shoreline.

9. Mr Macpherson rested the ladder adjacent to the fourth guide. He climbed the ladder and hooked the fourth guide on to the remaining chain.

10. One of the other guides, which was already on a hook, caught the edge of the headstock which then began to tip towards the rear of the Maeve Anne.

11. The first headstock tipped over onto the second headstock, also causing it to fall.

12. Mr McKay yelled out to Mr Macpherson.

13. Mr Macpherson jumped down from the ladder as the headstocks were tipping over.

14. Mr Macpherson ran underneath the second headstock but it fell upon him causing fatal injuries.

15. The intention of the crew on the barge had been for Mr Hartigan, once the four guides had been successfully removed from the top of the beams, to use the ladder again and oxy-cut the headstock beams away from the pile remnants. He was also going to oxy-cut the bracing away from the pile remnants.

16. The beams were going to remain on the Maeve Anne in accordance with a lashing plan, so that they could be transported to the next Brady Marine project.

17. The remnant piles and the bracing were to be taken to White Bay where they were to be treated as scrap metal.

18. Mr Mynott did not conduct an inspection of, or look at, the Maeve Anne on 1 March 2017.

19. No other employee of the defendant conducted an inspection of, or looked at, the Maeve Anne on 1 March 2017.

20. If Mr Mynott or Mr Kreft or Mr Pickersgill or Mr Fitzgerald had seen that the headstocks were standing upright but unsecured on the deck of the Maeve Anne, at any time between being landed on the deck on the afternoon of 28 February 2017 and when the incident occurred more than 24 hours later, they would have given an immediate direction to stop work and lay the headstocks down on the deck.

Findings of Fact concerning Events after 1 March 2017

409. I make the following findings of fact concerning Revision F of SWMS 04 General Crane Works (PX 16, Tab 58):

1. SafeWork NSW required the revision of the SWMS 04 General Crane Works.

2. The revision was required because the fallen headstocks were lying askew on the deck of the Maeve Anne and needed to be safely retrieved.

3. Brady Marine produced Revision F of SWMS 04, which added a new Step 12 dealing with “moving/lifting, placing and storage of steel headstocks” and a new Step 13 dealing with “Falling objects”.

4. The terms of Step 12 and Step 13 were designed to deal with the problem of how to safely retrieve the fallen headstocks from the deck of the Maeve Anne and how to safely lay them down on the deck rather than stand them upright.

5. It was still necessary for Brady Marine to oxy-cut the headstock beams from the headstocks, as the beams were to be retained by Brady Marine and the remnant piles and the bracing were to be discarded as scrap metal.

6. Not only did the fallen headstocks have to be retrieved from the deck, but they also had to be safely worked upon to separate the beams from the headstocks.

410. I find that the evidence does not establish that there should have been, prior to the incident, a SWMS in terms of Revision F, for the task of dealing with the headstocks once they were cut away from the temporary piles at Arrestor 4.

411. As more than one witness (including Mr Griffin, the Safety Manager engaged by Brady Marine) put it, the problem was not how the headstocks were removed after being oxy-cut from the temporary piles; rather the problem was that they were then simply left upright and unsecured on the deck.

412. Even though the defendant was involved in reviewing and approving Revision F, I do not think that it provides any evidence of a reasonably practicable measure which should have been taken by the defendant before the incident occurred. Revision F was created with the benefit of hindsight, and was created specifically to deal with the problem of the fallen headstocks which still needed work to be done on them before they could be removed from the deck of the Maeve Anne.

Findings of Fact in relation to Demobilisation Works

413. The submission was made by senior counsel for the defendant that Brady Marine was working on its own tasks solely for its own benefit when the accident happened, and that these tasks had nothing to do with the Sub-Contract Agreement and therefore nothing to do with the defendant.

414. I make the following findings of fact in relation to this topic:

1. Clause 20.1 of the Sub-Contract Agreement required Brady Marine to remove from the site, at its expense, all rubbish resulting from the execution of the Sub-Contract Works, and to leave the site in a clean and tidy condition after removing all surplus material supplied by the sub-contractor.

2. Brady Marine intended to cut the beams from the temporary headstocks which had been lifted from Arrestor 4, so that it could retain the beams and take them to the next project aboard the Maeve Anne.

3. While the headstock beams were being retained by Brady Marine and were staying on the barge, the remnants of the piles and the headstock guides were to become scrap metal.

4. They were to be transported to White Bay either on the supply barge or on the Maeve Anne when it was towed from Barangaroo to White Bay.

5. The remnants of the piles, the bracing and the headstock guides were scrap metal.

6. The remnants of the piles, the bracing and the headstock guides were to be put in large bins at White Bay and were to be taken away to a scrap metal yard.

7. Separating the guides from the headstock beams was an integral part of the demobilisation process, so that Brady Marine could carry out its obligations under the Sub-Contract Agreement to remove and dispose of all surplus material.

8. The precise operation upon which Brady Marine was engaged when the accident occurred was the removal of the cut guides from the headstock beams.

9. Removing the cut guides from where Mr Hartigan left them on top of the headstock beams was an integral part of the demobilisation process, so that Brady Marine could carry out its obligations under the Sub-Contract Agreement to remove and dispose of all surplus material.

415. As a result of these factual findings, I reject the submission that Brady Marine was engaged in its own operations and not in carrying out sub-contract works for the benefit of the defendant, when the incident occurred.

Consideration of Element 1 – Whether the Defendant owed a Duty

416. It was not in contest that the defendant was a person conducting a business or undertaking, which owed a health and safety duty under s 19(1) of the Act.

417. I am satisfied beyond reasonable doubt that the defendant owed a health and safety duty.

Consideration of Element 2 – Whether the Defendant failed to comply with the Health and Safety Duty

418. Section 19 of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable the health and safety of persons carrying out work activities. Section 17 of the Act provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

The Risk

419. As recited above, the word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. The risk is pleaded in par 16 of the Second Amended Summons as follows:

“The risk was the risk of workers ….. suffering serious injury or death as a result of being struck and/or crushed if the headstocks fell over.”

420. It is to be noted that there is no cause pleaded, the risk is simply the headstocks falling over. It does not matter that the experts agreed that it would take extraordinary forces caused by a collision, or wash, or the wind, to tip the headstocks over. There were other forces present on the Maeve Anne which could have caused the headstocks to fall, including:

1. Mr Hartigan leaning a ladder against the headstock and working from that ladder to cut the guides from the beams.

2. Mr Macpherson leaning a ladder and working from it to hook the cut guides onto the chains from the crane.

3. The presence of the crane with a load on the auxiliary hook swinging around to receive the next cut guide.

4. General crane operations all day on 1 March 2017 lifting material on and off the wharf and the supply barge.

5. The crane being manoeuvred to the point where it was anchored for the night on 28 February 2017, at the rear of the Maeve Anne adjacent to the unsecured headstocks.

421. None of this involves hindsight. All of these causes were foreseeable. Mr Fitzgerald (and others from the defendant) expressed the view that if he had seen the headstocks standing upright and unrestrained on the deck, he would have stopped work and given an immediate direction to lay the headstocks down. The risk was a general risk, which could have caused an accident in one of many ways. Mr Fitzgerald, Mr Pickersgill, Mr Kreft and Mr Mynott regarded the risk as obvious.

Reasonably Practicable – Section 18

422. The phrase “reasonably practicable” is defined in s 18 of the Act. It requires the court to take into account and weigh up all relevant matters, including those listed in pars (a) - (e) in s 18.

423. I set out the findings of fact relevant to the matters which s 18 says should be taken into account.

Findings of Fact – The Likelihood of the Risk Concerned Occurring – s 18(a)

424. I find the following facts:

1. The relevant risk was that pleaded in par 16 of the Second Amended Summons, being the risk of workers suffering serious injury or death as a result of being struck and/or crushed if the headstocks fell over.

2. The headstocks were top heavy with a centre of gravity in the upper half of the structure.

3. In the four scenarios identified in par 2.8 of the joint expert report (PX 21) the headstocks were agreed to be unstable.

4. An external force or event would be required to cause the headstocks to fall over (PX 21, par 2.11). Such an external force or event could be:

1. a collision between the barge and another substantial vessel;

2. a collision between the headstock and another object;

3. an external force applied to the headstock.

5. The crane located on the barge was used constantly to lift heavy objects onto and off the Maeve Anne, and onto and off the supply barge.

6. The Maeve Anne was subject to the effects of wind and wash and was not a stable platform.

7. Wind and wash caused the barge to move which caused the jib of the crane to move around.

8. Mr Woolley often did not have a clear view of the point on the barge from which or to which he was lifting – he had to be guided by a rigger or dogman via radio.

9. The crane had chains hanging from it and at the end of the chains were hooks.

10. A load on the crane, or just the bare hooks on the chains, could snag on a headstock beam and cause it to fall over onto the adjacent headstock, in turn causing the second headstock to also fall.

425. In the light of those facts I find that, given the large number of crane operations taking place, there was a significant likelihood that the headstocks might be tipped over if the crane or its load applied an external force to a headstock which was standing unrestrained on the deck of the Maeve Anne.

426. To put it another way, the risk that the headstocks could fall over was reasonably foreseeable. In making this finding, I assess the likelihood of the risk prospectively and not retrospectively.

Findings of Fact – The Degree of Harm that might result from the Risk – s 18(b)

427. I make the following finding of fact on this topic:

1. The headstocks were of such a height and weight, with a high centre of gravity, that the harm which might result from being struck and/or crushed if the headstocks fell over and onto a worker was harm constituting serious injury or death.

Findings of Fact – What the Defendant Knew or Ought Reasonably to have Known – s 18(c)

428. In relation to knowledge of the hazard or risk, I find the following facts:

1. The defendant did not have actual knowledge of the hazard or risk.

2. The defendant had a contractual obligation to conduct daily inspections of the work site.

3. In addition, it was the expectation of Mr Fitzgerald that an officer of the defendant would have made a visual observation of conditions on the Maeve Anne daily, at least by looking from land to sea.

4. There was no inspection of the kind required by the contract or expected by Mr Fitzgerald, on 28 February 2017 or on 1 March 2017.

5. There was only the casual and distant observation made on 28 February 2017 by Mr Mynott, which only told him that the headstocks were standing upright on the deck of the Maeve Anne, but which did not inform him as to whether they were secured or unsecured.

6. Given the contractual obligation to conduct an inspection and the expectation of Mr Fitzgerald that such an inspection would have been conducted on a daily basis, the defendant ought reasonably to have known about the hazard or risk which arose from the headstocks standing unsecured on the deck of the Maeve Anne in an upright position.

429. As to what the defendant knew or ought reasonably to know about ways of eliminating or minimising the risk, I make the following findings of fact:

1. Every employee of the defendant who gave evidence knew of the ways of eliminating or minimising the risk.

2. All personnel from the defendant who gave evidence said that they would have given a direction to lay the headstocks down on the deck rather than having them standing upright and secured.

3. The defendant had actual knowledge of the ways to eliminate or minimise the risk.

Findings of Fact – Availability and Suitability of ways to Eliminate or Minimise the Risk – s 18(d)

430. I make the following findings of fact on this topic:

1. All personnel of the defendant who gave evidence were of the view that the most suitable way of eliminating or minimising the risk was to lay the headstocks down.

2. On the part of the defendant, this did not require the defendant to actively participate in laying the headstocks down on the deck, but to exercise its power to stop the work because it was unsafe and direct Brady Marine to lay the headstocks down.

3. Other available measures were to obtain a risk assessment, or restrain the headstocks by securing them to the deck, or prohibit workers from being on the barge while the headstocks were upright and unrestrained.

4. All of these measures were available and suitable and could have been achieved by the defendant directing Brady Marine to take the measures.

Findings of Fact – The Cost associated with available ways of Eliminating or minimising the Risk – s 18(e)

431. My findings of fact are:

1. There was no cost to the defendant in taking appropriate measures.

2. The defendant did not need to actually perform any of the suitable measures itself at its own cost.

3. Instead, the defendant had the power to stop the work and to direct Brady Marine to do the work in a different and safe manner, at the cost of Brady Marine.

Duty of a Principal Contractor

432. I will consider first the submission for the defendant that it was entitled to rely upon Brady Marine for the maintenance and proper implementation of safety, and the further submission that it was not reasonably practicable for the defendant to be involved in any capacity in the application of those systems to every aspect of the work performed on the Maeve Anne by Brady Marine (MFI 22, par 22).

433. In par 74 above, I have attempted to summarise the principles which can be extracted from the cases concerning reasonable practicability in the case of a principal contractor. The question of what is reasonably practicable is a matter of fact and degree in each case.

434. I reject the submission made by senior counsel for the defendant that the defendant was entitled to rely upon Brady Marine for the maintenance and proper implementation of safety systems, and that it was not reasonably practicable for the defendant to be involved in any capacity in the application of those systems to every aspect of the work performed on the Maeve Anne by Brady Marine.

435. My reasons are:

1. The Act imposed a duty on the defendant not only to do what is reasonably practicable to ensure safety, but to take reasonable care that sub-contractors whose assistance was necessary did not expose workers to hazards.

2. While a PCBU can call upon expertise which it does not itself have, in the present case the defendant had the same expertise in a specialised marine construction task as Brady Marine did. For its own commercial reasons the defendant chose to sub-contract the marine piling work to Brady Marine. However, it was not engaging Brady Marine because the defendant did not know how to do the job.

3. The court must take into account a lack of expertise on the part of the PCBU and the comparative expertise of the independent contractor. This is not a case where the principal contractor did not have the requisite expertise to carry out the work which was sub-contracted to Brady Marine. Both the defendant and Brady Marine had expertise in the relevant specialist task.

4. The task undertaken by Brady Marine was not one which demonstrably fell outside the expertise of the defendant itself. A counter example is present in the evidence in this case. The defendant engaged sub-contracted divers to conduct underwater work in relation to the piling. Presumably the defendant did not have expertise in such work.

5. One of the chief responsibilities of the defendant was the safety of those who carried out work for it.

6. The question of control over the sub-contractor is relevant to the determination of what is reasonably practicable.

7. In the present case the defendant had control over Brady Marine, because it had the right to say to Brady Marine at any time that it had to stop work and to perform the work in a different, and safer, manner.

8. This was not a case where a PCBU handed work over to a contractor and could not judge for itself whether or not the work was being done in an appropriate fashion.

9. This was not a case where the defendant engaged a skilled contractor, where the contractor had knowledge of appropriate safety precautions but the PCBU did not. The defendant could not sit back and simply rely on Brady Marine to see that the work was carried out safely, as the defendant had the skill and expertise to judge whether the work was being performed safely.

10. This was a case where it was reasonably practicable for the defendant to give instructions on how the work was to be done and what safety measures were to be taken.

11. It was not enough for the defendant to merely assume that Brady Marine would attend to safety requirements. The fact that the defendant retained an overall responsibility for safety on the site, and retained the ability to direct Brady Marine to stop work or how to do work, means that it never sat back and simply assumed that because Brady Marine appeared competent, there was nothing that the defendant could do or needed to do to ensure health and safety, as required by the Act.

12. In any event, s 16 of the Act provides that more than one person can have a duty and that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty.

436. There are further reasons why such submission is rejected. The prosecutor tendered the WorkCover Construction work code of practice dated July 2014 (PX 24). Section 7 of that code is headed “General Workplace Management Arrangements”. Under that heading on p 31 the code sets out obligations in relation to principal contractors. It says that the principal contractor must put in place arrangements for ensuring compliance with certain duties, including “managing risks associated with falling objects”. Page 31 says:

“The principal contractors may put in place arrangements for ensuring compliance with the above requirements through contractual arrangements, but they cannot rely only on these arrangements to ensure compliance. The principal contractor may also coordinate with other PCBUs, such as subcontractors, and check compliance whenever the principal contractor attends the construction site. Alternatively, the principal contractor may directly provide the relevant facilities and/or procedures.”

437. Page 31 also says that principal contractors have duties to manage certain specific risks including:

1. The storage, movement and disposal of construction materials and waste.

2. The storage of plant that is not in use.

438. Page 67 of the code deals with “Falling objects”. It says:

“Falling objects can pose a significant risk and cause serious injuries to workers at construction workplaces or members of the public if control measures are not implemented to eliminate or minimise the associated risks. For example, a person could receive fatal head injuries if building materials or equipment is not secured or prevented from falling. It is essential to ensure that objects do not fall onto workers or other persons who may be under or adjacent to the area where the work is being performed.

Objects that could fall include:

●   Parts of a structure being built or dismantled.

●   Walls being demolished.

●   Material stored or stacked at the workplace.

●   Construction or waste material.

●   Debris.

●   Plant.”

439. Page 67 goes on to say:

“Control measures that can be implemented to manage the risk of falling objects when undertaking construction work include:

●   securing and properly bracing structures.”

440. Section 275 of the Work Health and Safety Act 2011 (NSW) provides as follows:

“Use of codes in practice in proceedings

(1) This section applies in a proceeding for an offence against this Act.

(2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.

(3) The court may:

(a)   have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and

(b)   rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.”

441. I have regard to the extracts from the code set out above as evidence of what is known about the hazard or risk of falling objects, in this case the unrestrained headstocks. I rely on the code in determining what is reasonably practicable in the circumstances. I take into account the extracts from the code as evidence of whether or not a duty or obligation under the Act has been complied with.

442. Further, the extract from p 31 of the code set out above makes it clear that while principal contractors may enter into contractual arrangements with sub-contractors, and while those contractual arrangements may cover matters of safety, principal contractors cannot rely on those arrangements to ensure compliance. For this additional reason I reject the submission made by senior counsel for the defendant concerning the duties of the defendant, the principal contractor in this case.

Reasonably Practicable – As Pleaded

443. I will now deal with the more general question of whether the defendant failed to comply with its health and safety duty to ensure, so far as was reasonably practicable, the health and safety of the nominated workers on the Maeve Anne. I have set out above my findings of fact in relation to the factors to be taken into account on the issue of reasonable practicability. In summary, those facts support the following propositions:

1. There was a significant likelihood that the pleaded risk would occur. The risk was reasonably foreseeable.

2. The degree of harm that might result from the risk was significant.

3. While the defendant did not have actual knowledge of the hazard or risk, it ought reasonably to have known of the hazard or risk.

4. The defendant had actual knowledge of the ways of eliminating or minimising the risk.

5. There were available suitable ways to eliminate or minimise the risk.

6. The costs to the defendant of the available ways of eliminating or minimising the risk were nil or minimal and so were not grossly disproportionate to the risk.

444. Senior counsel for the defendant submitted (MFI 22, pars 15-18) as follows:

1. The words “reasonably practicable” indicate that the duty does not require an employer to take every possible step that could be taken. Simply demonstrating that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has breached the duty (Baiada at [15] and [38]).

2. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter (Royall).

3. The approach identified in Baiada is appropriate in this matter given the expertise of Brady Marine as a specialist contractor, the extensive experience of the crew, the training in safety systems provided by the defendant and the comprehensive safety systems provided by and implemented by Brady Marine.

4. It was not reasonably practicable for the defendant to take every step that Brady Marine or its workforce should have taken. This is particularly so when consideration of the matter is approached on a common sense basis and without the benefit of hindsight.

5. All of the safety systems implemented need to be considered.

445. I accept subpars (1), (2) and (5) above as correct statements of the law. I reject subpars (3) and (4) of the submission for reasons set out below.

446. I now consider each of the reasonably practicable measures which were pleaded in the Second Amended Summons.

Undertaking a Risk Assessment

447. Paragraph 17(a) of the Second Amended Summons pleads that the defendant should have undertaken a risk assessment, or ensured that a risk assessment had been undertaken by Brady Marine “before any headstocks were removed”. Paragraph 17(a) pleads that such a risk assessment should have identified the risk arising from storing unsecured headstocks on the barge in an upright position.

448. The defendant was sent the minutes of the pre-start meeting held on 28 February 2017 (PX 14, Tab 18). One of the tasks noted in those minutes was cutting the headstocks at Arrestor 4. These headstocks were unique, in the sense that they were very different to the headstocks at Arrestors 1, 2 and 3. The particular SWMSs noted on the minutes as applicable to that task were 05 (work at heights), 06 (gas cutting and welding) and 10 (hot works). The START cards for 28 February 2017 (PX 14, Tab 24) said nothing about any assessment of that task or its risks.

449. As a matter of common sense, those cut headstocks had to be landed somewhere and stored somewhere. The absence of a START card for the task should have alerted the defendant to the need to satisfy itself that Brady Marine had assessed the risks involved in dealing with structures which were top heavy and potentially unstable.

450. The defendant was sent the minutes of the pre-start meeting held on 1 March 2017 (PX 14, Tab 19). One of the tasks noted in those minutes was “cut headstocks from piles”. Mr Mynott had seen the headstocks standing upright on the deck of the Maeve Anne on the afternoon of 28 February 2017. The START cards for 1 March 2017 (PX 14, Tab 25) said nothing about this task. This was a unique task, as the sleeved headstocks from Arrestors 1, 2 and 3 had not needed to be cut apart. By contrast, there was a START card for the one-off task of “welding pile extension” (PX 14, Tab 25, p 4).

451. As a matter of common sense, cutting the headstocks (i.e. the headstock beams) from the piles had to be done either on the Maeve Anne or the supply barge. The defendant, through Mr Mynott, knew the complete headstocks were standing upright on the Maeve Anne. The defendant had no idea where the cutting would take place or how the headstocks would be positioned (upright or lying on their sides). The absence of a START card for the task should have alerted the defendant to the need to satisfy itself that Brady Marine had assessed the risks involved in working upon structures which were top heavy and potentially unstable.

452. There was in effect a gap in the safety documentation sent by Brady Marine, both on 28 February and 1 March 2017. Tasks listed on the prestart minutes on both days were unusual if not unique, but were not accompanied by anything in the START cards to show that potential hazards had been assessed and would be controlled. These lacunae should have been spotted by the defendant. It could not sit back and assume that its sub-contractor was doing everything safely, especially when it held documents that cast doubt upon whether any, or any adequate, safety precautions were to be taken.

453. It is not enough for a principal contractor to assume that because a sub-contractor’s workers have been trained and are experienced, it can be assumed that they will do everything safely. As recited at the start of this judgment, one of the principles of law applicable is that defendants must conduct operations on the basis that inadvertent and even negligent acts by workers will occur and they must be guarded against.

454. It would have been reasonably practicable for the defendant to have required Brady Marine to undertake a risk assessment. There was no cost to the defendant in requiring Brady Marine to undertake a risk assessment. The defendant had reserved to itself the right to issue such a directive to Brady Marine. I find that the steps pleaded in par 17(a) of the Second Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Safe Work Procedure

455. Paragraph 17(b) of the Second Amended Summons pleads that a reasonably practicable measure, as a result of any risk assessment, was to ensure that the safety measures identified were incorporated by Brady Marine into a safe work procedure. The appropriate measures were laying the headstocks on their side, restraining the headstocks and having a safety rule that no workers were permitted to work on the barge or work on the headstocks until the risk was eliminated or minimised.

456. Since I have found that the defendant should have required Brady Marine to undertake a risk assessment, it follows that the defendant should also have ensured that the result of any risk assessment was incorporated into a safe work procedure by Brady Marine. The defendant’s employees who gave evidence all agreed that these unrestrained headstocks should have been immediately laid down.

457. There was no cost to the defendant in requiring Brady Marine to create a safe work procedure based upon the steps identified in a risk assessment. I find that the steps pleaded in par 17(b) of the Second Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Direction to Lay Headstocks Down or Restrain Them

458. Paragraph 17(c) of the Second Amended Summons pleads that the defendant should have directed Brady Marine to ensure that the headstocks were laid down or restrained while workers were present on the barge. I find that the defendant could and should have become aware of the need to take these measures in one of two ways.

459. Firstly, the defendant should have taken the steps pleaded in pars 17(a) and (b) of the Second Amended Summons, so as to become informed by a risk assessment that there was a risk and that there were steps which should be taken to eliminate or minimise the risk.

460. Secondly, the defendant had its own contractual obligation to conduct a daily inspection of the Maeve Anne. The defendant’s Managing Director expected this to be carried out. Had the defendant carried out this obligation and met this expectation, it would have become aware that the headstocks were not secured in any way. The defendant already knew that the headstocks were standing upright on the Maeve Anne, by reason of the observation made from afar by Mr Mynott on the afternoon of 28 February 2017. The simplest visual inspection on the afternoon of 28 February 2017 or at any time on 1 March 2017 before 4.30pm, or the simplest enquiry of Mr Labuschagne, would have disclosed to the defendant that there was a significant risk present on the barge because of the unrestrained upright headstocks.

461. The defendant should have become aware of this and should then have directed Brady Marine to take steps to lay the headstocks down or restrain them while workers were present on the barge. This was a simple, effective and cheap means of the defendant discharging its health and duty under the Act. I find that the steps pleaded in par 17(c) of the Second Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Supervision, Instruction and Training

462. Paragraph 17(d) of the Second Amended Summons pleads that the defendant should have directed Brady Marine to enforce all of the measures pleaded such as laying the headstocks on their sides, restraining the headstocks or having a rule that no workers were permitted on the barge or were permitted to work on the headstocks until the risk was eliminated or minimised. Paragraph 17(d) of the Second Amended Summons pleads that this should have been achieved by directing Brady Marine to provide supervision, instruction and training concerning the risk and the means by which it would be controlled.

463. It is plain from the evidence of every Brady Marine employee that nobody gave a moment’s thought to the risk posed by these headstocks standing upright and unrestrained on the deck of the Maeve Anne. A simple direction to Brady Marine to supervise, instruct and train the workers concerning the risk and the means by which it would be controlled would have drawn the attention of Brady Marine to what should be done to eliminate or minimise the risk. Again, a direction by the defendant to Brady Marine to the effect pleaded would have been a quick, effective and cheap means of ensuring safety. I find that the steps pleaded in par 17(d) of the Second Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Prohibiting Workers

464. Paragraph 17(e) of the Second Amended Summons pleads that the defendant should have prohibited workers from being on the barge or undertaking work on the barge when the headstocks were not restrained or laid down on their sides. The evidence shows that the defendant had the right to stop any work it observed and to direct that work be conducted in a manner which it regarded as safe.

465. Exercising these powers, by taking the steps pleaded in par 17(e) of the Second Amended Summons was a reasonably practicable means of carrying out the defendant’s duty under the Act. I find that the steps pleaded in par 17(e) of the Second Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Storage or Removal

466. The same reasoning applies to par 17(f) and par 17(g) of the Second Amended Summons. The defendant should have prohibited the headstocks being stored on the barge if not properly secured and should have required the headstocks to be removed from the barge before workers were permitted on the barge. Of course, both steps could only have been taken once the defendant became aware of the risk posed by the headstocks being stored upright and unrestrained, but I have already found that the defendant should have become so aware by one means or another, as discussed above.

467. I am satisfied beyond reasonable doubt that the defendant failed to comply with the health and safety duty.

Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

468. The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Macpherson, but whether the act or omission of the defendant was a substantial or significant cause of the workers being exposed to the risk of injury – Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127], [130].

469. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers – Bulga Underground Operations v Nash at [129-130].

470. The fact that a third party (in this case Brady Marine) missed an opportunity to eliminate the risk in question does not mean the court is precluded from finding that the defendant’s failure substantially contributed to the risk – Simpson Design & Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 at [117].

471. Given my findings that the defendant should have become aware of the risk, and the simple, cost-free and effective reasonably practicable means available to it to ensure safety, I find that the breach of duty by the defendant was a substantial contributing factor to the risk.

472. I am satisfied beyond reasonable doubt that the breach of duty by the defendant exposed workers to a risk of death or serious injury.

Conclusion

473. I find that the defendant McConnell Dowell Constructors (Aust) Pty Limited committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) because:

1. The defendant owed the workers named in the Second Amended Summons dated 24 July 2020 a health and safety duty under s 19(1) of the Act.

2. The defendant failed to comply with that duty.

3. The breach of duty by the defendant exposed the workers to a risk of death or serious injury.

474. I find the offence set out in the Second Amended Summons dated 24 July 2020 proved beyond a reasonable doubt.

475. I will hear the parties on sentence.

Orders

476. The orders are:

1. The elements set out in the Second Amended Summons dated 24 July 2020 have been proved beyond reasonable doubt.

2. I find the defendant McConnell Dowell Constructors (Aust) Pty Limited guilty.

3. The matter will be listed for a sentence hearing on a date convenient to the parties.

Postscript Concerning the Conduct of the Trial

477. I wish to record my appreciation for the way in which all counsel, and their instructing solicitors, conducted this trial during the pandemic. Several witnesses were located in Western Australia, Victoria, Queensland and country New South Wales. Their evidence was taken by audio-visual link. The parties worked out methods of ensuring the integrity of the process, so that evidence was given remotely with the same formality and solemnity as if it took place in a courtroom in Sydney. The process was assisted because both sides were well-prepared and witnesses were organised so that there was almost no lost time. In the long run it is to be hoped that all witnesses can give their evidence in the courtroom, but this case showed that with planning, co-operation and a lot of patience, evidence in a case such as this can be taken in a satisfactory way by audio-visual link.

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Decision last updated: 06 November 2020