SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 3)

[2021] NSWDC 105

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 3) [2021] NSWDC 105

Hearing dates:

26 March 2021

Date of orders:

8 April 2021

Decision date:

08 April 2021

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   McConnell Dowell Constructors (Aust) Pty Limited was convicted on 26 March 2021.

(2)   The Victim Impact Statements of Ms Kay Macpherson and Mr Iain Macpherson are taken into account.

(3)   Order McConnell Dowell Constructors (Aust) Pty Limited to pay a fine of $500,000.

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

(5)   Order McConnell Dowell Constructors (Aust) Pty Limited to pay the prosecutor’s costs.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – general deterrence – specific deterrence – substantial harm, injury, loss or damage – parity principle – victim impact statement – appropriate penalty

COSTS – prosecution costs

OTHER – Unrestrained steel headstocks 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 obligation

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

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

Cases Cited:

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

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

BW v R [2011] NSWCCA 176

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

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

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

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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

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

R v Brady Marine & Civil Pty Ltd [2020] NSWDC 775

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

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

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

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

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

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

Texts Cited:

AS/NZS 4801:2001, Occupational health and safety management systems — Specification with guidance for use, November 2001

Category:

Sentence

Parties:

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

Representation:

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

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

File Number(s):

2018/387429

Judgment

1. On 1 March 2017 workers were carrying out work on the Maeve Anne barge as part of the Barangaroo Ferry Hub (“BFH”) project. McConnell Dowell Constructors (Aust) Pty Limited (“McConnell Dowell”) was a principal contractor who had subcontracted Brady Marine & Civil Pty Ltd (“Brady Marine”) to provide marine services and installation of piling works on the BFH project. Two headstocks which were standing upright and unrestrained on the deck of the Maeve Anne fell over and onto Mr Timothy Ross Macpherson, a rigger, who died as a result of the severe injuries sustained.

2. On 6 November 2020, after an 18 day trial, I found McConnell Dowell guilty of an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (“the Act”) it failed to comply with that duty and thereby exposed 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 – SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668.

3. My findings of fact and law are set out extensively in that earlier judgment and I will not repeat them in this sentencing judgment.

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

Evidence for McConnell Dowell: Affidavit of Samantha Jane Johnson

5. McConnell Dowell relied upon the affidavit of Ms Samantha Jane Johnson affirmed on 15 March 2021. Ms Johnson is currently employed at McConnell Dowell in the role of Executive General Manager – Health, Safety, Environment and Quality (EGM – HSEQ). Her responsibilities as an EGM – HSEQ include corporate leadership, policy and program implementation, assurance and reporting, personnel management, continual improvement and implementation of risk-based systems to support HSEQ activities and business strategy improvement initiatives.

6. Ms Johnson was a member of the Crisis Management Team formed in response to the incident and has been one of the senior representatives of McConnell Dowell involved in the post-incident response, investigation processes and proceedings.

Expression of Regret

7. On behalf of McConnell Dowell and herself, Ms Johnson expressed sincere regret and personal sadness to the Macpherson family for their tragic loss.

Corporate Background

8. In her affidavit, Ms Johnson provided a background to the offender. She explained that the company was established in 1985 and is part of the McConnell Dowell Group which was established in 1961 in New Zealand. She detailed examples of several large projects that the offender has been involved in across Australia and across a range of industries, including building, civil, electrical, fabrication, marine, mechanical, pipeline, rail, tunnel and underground construction projects.

The Barangaroo Project

9. Ms Johnson detailed the workforce that was allocated to the BFH project, stating that there were approximately 120 different subcontractors and sub-subcontractors and approximately 793 workers who were inducted to perform works on the BFH project.

10. The types of works these workers were involved in included: site surveys; site establishment; crane works; plumbing; electrical; painting; roofing; diving; excavation; concreting; cladding; fabrication and steel works; ceiling works/soffit lining; flooring; scaffolding; abrasive blasting; welding; balustrades and glazing; security and audio installation; barge and marine works; environmental support services; site maintenance and traffic control.

WHS Systems as at 1 March 2017

11. Ms Johnson went into detail on how the McConnell Dowell Management System (MMS) functioned as at 1 March 2017. This MMS was certified to various international and national standards, including AS/NZS 4801:2001 Occupational health and safety management systems — Specification with guidance for use, November 2001. In summation, the HSEQ policies and procedures within the MMS were used as the foundation for the development of all project level WHS management systems including the systems developed for the BFH project.

Role as Principal Contractor

12. From June 2016 to the date of the incident, the following was undertaken by McConnell Dowell as the principal contractor:

1. Preparing a hazard register recording approximately 758 hazards.

2. Preparing 209 supervising engineer’s daily reports/site diary entries by Mr Mynott.

3. Carrying out 35 weekly consultative safety inspections in conjunction with Transport for New South Wales (“TfNSW”) to address issues such as housekeeping, PPE, ladders/working from height, electrical hazards, plant/equipment, access/fencing/security, hazardous chemicals, safety documents/supervision, safety signage, emergency response, workplace amenities and excavation.

4. Holding 40 toolbox meetings.

13. In addition, from the commencement of the project up until 1 March 2017, the following was undertaken:

1. 211 SWMS documents were prepared by subcontractors, sub-subcontractors and McConnell Dowell, most of which were reviewed and revised multiple times.

2. 12 visiting manager reviews carried out by McConnell Dowell, including Ms Johnson, the Managing Director and the Operations Manager.

Steps Taken Following the Incident

14. Several steps were taken in response to the incident, including:

1. Construction activities were immediately suspended after the incident and a Crisis Management Team was convened to co-ordinate and respond in accordance with the Crisis Management Plan and Project WHSMP in place. The BFH project was closed on or about 14 March 2017 and did not recommence until on or about 21 March 2017.

2. Notifying all McConnell Dowell Operations Managers and Project Managers throughout Australia of the incident.

3. Offering counselling support to Mr Macpherson’s family.

4. Establishing a Crowd Funding website for Mr Macpherson’s family, raising a total of $84,364.86 with $50,000 specifically being contributed by McConnell Dowell.

5. Organising a memorial service on the first anniversary of the incident with TfNSW.

6. Collaborating with TfNSW to develop and introduce a “Re-Start Plan” that involved the review of all BFH project SWMS.

7. Developing the “Home Without Harm” programme through consultation with experts from Griffith University and RMIT University, safety organisations and psychologists. Ms Johnson stated that the program was designed to “elevate safety as a value within the business”.

8. Co-operating with SafeWork NSW, NSW Police and the NSW State Coroner’s Court in all their investigations of the incident.

Industry and Community Contributions

15. In her affidavit, Ms Johnson explained that McConnell Dowell is actively involved in supporting safety initiatives throughout the construction industry and several of its employees serve on various industry safety committees. She also listed examples of the various safety awards McConnell Dowell has received since 2010, including awards recognising its safe working practices on pipeline, airport, construction, mobile platforms, export facility and rail crossing projects.

16. McConnell Dowell also has a Corporate Social Responsibility (“CSR”) programme, which has resulted in several thousand dollars being raised for many different charitable organisations and causes.

17. Beyond this, Ms Johnson elaborated on McConnell Dowell’s commitment to being a leader in social and sustainable procurement. In particular, it has focused upon providing opportunities for Aboriginal and Torres Strait Islander people, socially and economically disadvantaged Australians, as well as supporting local businesses and environmental initiatives. Out of the $55 million of materials supplied to the BFH project, $42.3 million of those materials were obtained through Australian suppliers.

Consideration

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

Objective Seriousness of the Offence

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

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

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

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

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

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

24. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

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

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

26. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

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

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

28. My findings about the offender’s level of culpability are based upon the following:

1. The risk of the headstocks falling over on the barge was foreseeable. McConnell Dowell had a contractual obligation to conduct daily worksite inspections and so ought to have known about the risk. The risk was regarded as obvious, once seen, by persons working for McConnell Dowell in managerial positions.

2. Having regard to the large number of crane operations taking place in the vicinity of the barge, there was a significant likelihood the headstocks might be tipped over if a crane or its load applied force to the headstocks when they were standing upright and unrestrained on the deck of the Maeve Anne.

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

4. There were steps that McConnell Dowell could have taken, including directing Brady Marine to lay the headstocks down, obtain a risk assessment, secure the headstocks to the deck or prohibit workers from working on the barge while the headstocks were upright and/or unrestrained.

5. There would have been no significant burden or cost involved in taking the appropriate measures. McConnell Dowell should have become aware that the risk was present. It had the power to stop work and compel Brady Marine to fix the problem.

6. The harm caused was extremely serious and tragic. Mr Macpherson lost his life.

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

29. I find that the level of culpability of McConnell Dowell is in the upper end of the mid range.

Deterrence

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

31. The penalty must reflect the need for specific deterrence. McConnell Dowell is still conducting a business. Its operations involve marine services and the continuing engagement of employees and subcontracted workers.

Aggravating Factors

32. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The death of Mr Macpherson is sufficient to establish the aggravating factor. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial.

Mitigating Factors

33. McConnell Dowell does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. It has been in business for 36 years and is a first time offender. This is a very impressive safety record for a large company involved in complicated high risk projects. The law requires me to take the nil record into account and it will operate to moderate the penalty which I would have otherwise imposed.

34. McConnell Dowell is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

35. McConnell Dowell is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

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

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

Parity

38. Brady Marine was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Macpherson was killed. Brady Marine appeared for sentence before her Honour Judge Strathdee on 20 October 2020. On 18 December 2020 Brady Marine was convicted. Her Honour imposed a fine of $450,000 (being $600,000 reduced by 25% to reflect the guilty plea) plus costs of the prosecutor as agreed or assessed: R v Brady Marine & Civil Pty Ltd [2020] NSWDC 775.

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

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

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

41. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

42. It is appropriate for the court to consider the respective contributions of Brady Marine and McConnell Dowell. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

43. I find that McConnell Dowell was less culpable than Brady Marine. The headstock beams had been cut from the piles and were landed on the Maeve Anne by Brady Marine personnel. They remained on the deck unrestrained overnight and well into the next day. Brady Marine had a highly qualified crew on board the Maeve Anne, none of whom perceived the risk arising from the headstocks. The Brady Marine crew worked in and around the headstocks for the best part of two days, but took no action. By contrast, McConnell Dowell had fewer opportunities to become aware of the risk, by the means identified in the primary judgment. Judge Strathdee found that the objective seriousness of the breach committed by Brady Marine was “High”, a conclusion which the facts obviously commanded. By contrast I have found the objective seriousness referable to McConnell Dowell to be slightly lower on the continuum.

Capacity to Pay a Fine

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

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

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

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

Victim Impact Statements

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

48. A Victim Impact Statement may be tendered to the court only by the prosecutor: s 30A(2) Crimes (Sentencing Procedure) Act 1999 (NSW). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division: s 30B Crimes (Sentencing Procedure) Act 1999 (NSW). A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement: s 30D(1) Crimes (Sentencing Procedure) Act 1999 (NSW).

49. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate: s 30E(1) Crimes (Sentencing Procedure) Act 1999 (NSW)

50. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community: s 30E(3) Crimes (Sentencing Procedure) Act 1999 (NSW) One of the purposes of sentencing is to recognise the harm done to the victim of the crime and the community: s 3A (g) Crimes (Sentencing Procedure) Act 1999 (NSW).

51. Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

52. The court received Victim Impact Statements from Ms Kay Macpherson, the mother of Mr Timothy Ross Macpherson (PX 30), and Mr Iain James Macpherson, the father of Mr Timothy Macpherson (PX 31). Mr Iain James Macpherson also read his statement out aloud to the court by audio visual link.

Ms Kay Macpherson

53. Ms Kay Macpherson is the mother of Mr Macpherson. She described the tragic death of her son as an event “that has left a huge hole” in her life and the lives of many other people. She explained that Mr Macpherson was loved by everyone in their close knit family. Ms Macpherson described her son as
    “a lovable child with such a beautiful smile” who “grew into a lovable adult, husband & father”.

54. At the time Ms Macpherson received the call from her son’s father to tell her about Mr Macpherson’s passing, she went into disbelief. As the days went on and the death of her son sank in, she felt “empty, gutted & at a loss”. Ms Macpherson explained that there is not a day that goes by when she does not think about her son and she still sheds tears when talking to people about him and his death. Ms Macpherson said that special dates and occasions are particularly difficult. She gets emotional when she reads stories that Mr Macpherson wrote when he was a child. Whenever she hears about other workplace accidents on the news, her thoughts relating to her son’s passing come flooding back.

55. At the time of Mr Macpherson’s death, Mr Macpherson’s son Jack was only 14.5 months old and his wife Ashleigh was pregnant with their second child. Mr Macpherson did not get to meet his daughter Annabelle. Ms Macpherson said that her heart breaks that her son’s children will grow up not knowing their father.

56. Mr Macpherson died on the same day as the birthday of his sister Christina. As a result, Ms Macpherson said 1 March will always be a bittersweet date for her and her family for the rest of their lives.

Mr Iain James Macpherson

57. Mr Iain James Macpherson last spoke to his son on the evening of 29 January 2017 when he hosted a dinner at his newly established family home. Mr Iain Macpherson was close to his son and would spend time with him, his daughter-in-law and his grandchildren.

58. Mr Iain Macpherson explained that his son was a proud dad and was enjoying his relatively remote work on the Barangaroo Project — coming home to Windella every Friday and leaving his family very early on Monday mornings to travel to his wife’s brother's accommodation closer to Barangaroo for the working week.

59. Mr Iain Macpherson was proud of the life his son had established with his daughter-in-law and of the involved father he had become. He deeply admired his son’s devotion and purpose as a father.

60. Mr Iain Macpherson explained that he was numb and shocked when he first learnt of the news of his son’s passing from his son’s father-in-law. He then had the gut-wrenching task of informing the rest of the family about his son’s death. Mr Iain Macpherson explained that he ended up in hospital for several days before and during Mr Macpherson’s funeral arrangements and cremation. On the day of the funeral and memorial, his doctor’s allowed him half a day of leave from his treatment to attend. Many people attended and Mr Iain Macpherson noted that Mr Macpherson’s sister in particular was the “saddest of all people…bewildered by the haunting thought of forever sharing her birthday with the anniversary of her brother's passing”.

61. Mr Iain Macpherson said that memories of Mr Macpherson as a child and an adult “randomly floated in and out of my mind several times every week since”. Whenever he sees adult children die in documentaries, movies and TV shows, he relives 1 March 2017. He noted that Mr Macpherson will not be forgotten by his family, his in-laws, his widow or his children. He explained that he is taking care of himself to ensure that he is around for his grandchildren.

62. In the years since his son’s death, Mr Iain Macpherson has developed an even stronger awareness of workplace safety. He stops at building sites or other workplaces as soon as he sees any slightly elevated risk. On occasion, he reports issues to SafeWork NSW. He also speaks at Maritime Union and Building Union events about safety and parental expectations and keeps in contact with other people who have lost loved ones in similar circumstances.

63. Mr Iain Macpherson stated that “Tim's memory demands judicious application of an appropriate punishment that will stand as a serious warning to any other employers, contractors, developers, entrepreneurs or equipment suppliers who might ever take the ‘she'll be all right’ attitude… to workplace safety”.

64. The court is grateful to have received details about Mr Macpherson’s life, and the terrible effects of his death upon his family. I will take these matters into account in reaching a penalty. It would be understandable if the family regarded the fine to be imposed as inadequate. I want the family to understand that I am bound to follow the law and in particular the decisions of the Court of Criminal Appeal, which give guidance to judges of lower courts as to sentencing principles and penalties.

Costs

65. The prosecutor seeks an order for costs of the proceedings, as agreed or assessed. This was not opposed.

Penalty

66. My orders are:

1. McConnell Dowell Constructors (Aust) Pty Limited was convicted on 26 September 2021.

2. The Victim Impact Statements of Ms Kay Macpherson and Mr Iain Macpherson are taken into account.

3. Order McConnell Dowell Constructors (Aust) Pty Limited to pay a fine of $500,000.

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

5. Order McConnell Dowell Constructors (Aust) Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 08 April 2021