SafeWork NSW v Murray Constructions Pty Ltd

Case [2023] NSWDC 343


District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Hearing dates: 22 August 2023
Date of orders: 31 August 2023
Decision date: 31 August 2023
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   Murray Constructions Pty Ltd was convicted on 2 August 2023.

(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Murray Constructions Pty Ltd to pay a fine of $450,000.

(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 Murray Constructions Pty Ltd 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 – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements

COSTS – prosecution costs

OTHER – excavator bucket fell from trailer during unloading – worker fatally crushed and another injured – failure to require that loads be supported by or connected to plant prior to load restraint devices being released – failure to prohibit unlicensed persons from performing dogging duties during unloading operations

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43

Work Health & Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Sch 3, Sch 4

Cases Cited:

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

Brzozowski v R [2023] NSWCCA 129

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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

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

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

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

SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

Safety Assist Publication, “Loading, Unloading, Exclusion Zones”, November 2010

SafeWork Australia Code of Practice, “Managing Risks of Plant in the Workplace”, August 2019

WorkCover NSW Code of Practice, “Moving Plant on Construction Sites”, 2004

WorkCover NSW Fact Sheet, “Safe Unloading and Loading of Trucks for Bulky Goods Retailers”, September 2014

Category:Sentence
Parties: SafeWork NSW (Prosecutor)
Murray Constructions Pty Ltd (Defendant)
Representation:

Counsel:
P J Gow (Prosecutor)

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AGLC
SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Case
[2023] NSWDC 343
Decision Date

CaseChat Overview and Summary

In the case of SafeWork NSW v Murray Constructions Pty Ltd, the issue before the court was the prosecution of the company for its failure to ensure the health and safety of its employees, resulting in a fatal incident. During the unloading of an excavator bucket from a trailer, it fell, fatally crushing one worker and injuring another. The prosecution argued that the company breached its duty under the work health and safety laws by not requiring that loads be supported or connected to plant equipment before releasing load restraint devices, and by allowing unlicensed individuals to perform dogging duties during unloading operations.

The primary legal issues revolved around the objective seriousness of the offence, the presence of mitigating and aggravating factors, and the appropriate penalty to be imposed. Given Murray Constructions’ early plea of guilty, the court acknowledged a reduction in the fine. The court considered factors such as the potential for general and specific deterrence, the company’s capacity to pay, and the impact on the victims' families. Ultimately, the court found the offence to be of significant seriousness due to the loss of life and severe injury.

Murray Constructions was convicted and fined $600,000, reduced by 25% due to the guilty plea. The court ordered a fine of $450,000 and mandated that 50% of this fine be paid to the prosecutor. Additionally, the company was directed to cover the prosecution's costs. These orders reflect the court's intention to impose a penalty that serves both as a deterrent and a form of retribution, while also considering the company's financial ability to pay and the impact on the victims' families.

Orders

Orders of the court

(1) Murray Constructions Pty Ltd was convicted on 2 August 2023.

(2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Murray Constructions Pty Ltd to pay a fine of $450,000.

(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 Murray Constructions Pty Ltd to pay the prosecutor’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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