SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2)

[2022] NSWDC 163

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163

Hearing dates:

6 May 2022

Date of orders:

18 May 2022

Decision date:

18 May 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1  Saunders Civilbuild Pty Ltd is convicted.

2  I impose a fine of $375,000.

3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

4 The defendant must publish the Notice set out in Annexure “A” by causing it to be published on or before 30 June 2022, or the first edition of the relevant publication after that date, in two consecutive editions of each of:

(a) The Master Builders Association Magazine; and

(b) The Civil Contractors Federation Bulletin.

5  The Notice must:

(a) be of a size no less than a full page in the Magazine or at least 28 cm x 5 columns in size;

(b) use a minimum type size of 12 point Times New Roman or equivalent; and

(c) be in full colour.

6  The offender is to notify the prosecutor on or before 5pm on 30 June 2022 with evidence that the adverse publicity order has been complied with.

7  The defendant is to pay the prosecutor’s costs of the proceedings.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker

SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – adverse publicity order - good prospects of rehabilitation – remorse

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605

Texts Cited:

Civil Contractors Federation Bulletin

Master Builders Association Magazine

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Saunders Civilbuild Pty Ltd (Defendant)

Representation:

Counsel:
M Cahill (Prosecutor)
P Barry (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Moray & Agnew Lawyers (Defendant)

File Number(s):

2020/32219

Publication restriction:

None

Judgment

Introduction

1. Saunders Civilbuild Pty Ltd (the defendant) appears for sentence after it was found guilty after trial of an offence contrary to s 32 Work Health and Safety Act 2011 (the Act).  The maximum penalty for the offence is a fine of $1.5 million. 

2. The Court’s reasons for the finding of guilt are set out in its decision SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (the verdict judgment).

3. The following facts are extracted from [5]-[79] of the verdict judgment.

Facts

General background 

4. The defendant operated a business involving construction work, including bridge design and construction, wharf construction, major concrete and building works, pre-cast concrete manufacturing and piling works. The defendant’s piling services operated from its yard in Redhead, New South Wales (the yard). 

5. On or about 31 March 2017, the defendant acquired Civilbuild Pty Ltd (Civilbuild) that operated a business providing piling services and other construction activities. Thereafter the defendant operated the business formerly conducted by Civilbuild.  

6. The defendant employed Stephen Brown as a Plant and Piling Supervisor. Mr Brown worked in the yard as well as at building sites undertaking piling works. Mr Brown held a number of High Risk Work Licences allowing him to drive a forklift, undertake advanced rigging, act as a dogman, and slew a mobile crane (up to 100 tonnes). Mr Brown was first employed by Civilbuild in about 1988 and his employment was transferred to the defendant at the time of the acquisition in 2017. 

7. Nathan Williams was employed by the defendant as a labourer at the yard. He was a qualified dogman. He also assisted in piling work on small jobs from time to time. Mr Williams was first employed by Civilbuild and his employment was transferred to the defendant at the time of the acquisition in 2017. 

8. Geoffrey Edwards operated a heavy combination vehicle consisting of a Mack prime mover attached to a Lusty low loader trailer (the truck) and traded under the name Edwards Float Hire (EFH). The trailer consisted of a gooseneck that attached the prime mover to the low loader part of the trailer. Over the top of the gooseneck and at the beginning of the low loader part of the trailer there were two U-shaped frames mounted on the trailer that were used for carrying long freight such as the timber piles (the U frame). The uprights of the U frame were described as “bollards” in the evidence. At the rear of the trailer there were two ramps that could be lowered to drive plant onto the low loader part of the trailer. 

9. Prior to operating his own truck, Mr Edwards had worked as a truck driver for a company contracted to Civilbuild to move plant, equipment and materials to its sites. After the merger in 2017, Mr Edwards continued to be contracted to the defendant to move plant, equipment and materials to its sites. Mr Edwards and Mr Brown had worked closely together in their work for Civilbuild and the defendant for about 20 years. Mr Brown had assisted Mr Edwards to load and unload his truck on many occasions. 

Systems of work in place prior to the incident 

The Integrated Management System 

10. On 12 August 2017 the defendant adopted a document entitled “Saunders Civilbuild Integrated Management System” (the IMS). The IMS stated that the processes in the IMS were to be used as part of the defendant’s risk management process to ensure that all operations were appropriately planned. 

11. The IMS stated that it applied to all of the defendant’s employees and contractors and that those persons were required to comply with the processes and controls described in the IMS. The IMS consisted of the IMS document itself and the procedures referred to in it that outlined specific requirements to achieve compliance. 

12. Section 4 of the IMS set out the defendant’s policies, including its work health and safety policy (WHS policy). The overarching objective of the WHS policy was to provide and maintain a safe and healthy work environment for all personnel involved in the defendant’s operations. This overarching objective was said to be promoted by, amongst other things, proper planning and commitment of resources, implementing safe work practices, consultation with all workers on all WHS procedures, safe operation and maintenance of all plant and equipment, promotion of safety through positive action of all workers to ensure the welfare of others, ensuring all workers were competent and suitably trained to perform the duties for which they were employed, and providing an effective system of hazard identification, injury prevention and incident reporting.

13. Section 5.1 of the IMS set out the responsibilities of employees and sub-contractors of the defendant. The IMS required all staff and sub-contractors to be inducted and trained to ensure they understood their responsibilities for the effective implementation and operation of the IMS. In a flowchart of responsibilities, sub-contractors appeared at the lowest level, and were shown as being under the supervision of a site/precast supervisor when performing work. 

14. Section 5.1.4 of the IMS dealt with duties of care owed by the defendant. The IMS stated that the defendant was required to ensure in so far as was reasonably practicable: 

1. the health and safety of Saunders Civilbuild workers and workers whose activities in carrying out work were influenced or directed by Saunders Civilbuild; 

2. that there were systems of work that ensured the safe use, handling, storage and transport of plant, equipment, materials, structures, and hazardous substances; and 

3. that information, training, instruction or supervision was provided that was necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the defendant’s business. 

15. Section 5.1.7 of the IMS established the responsibilities of the site/precast supervisor, who was selected for each project. These responsibilities included, amongst other things, WHS hazard identification and preparation of the analysis and control methods with the manager and relevant staff and/or sub-contractors, surveillance of sub-contractors’ and suppliers’ work, and implementation and monitoring of WHS requirements and controls in the workplace as set out in the IMS. 

16. Section 5.2 of the IMS dealt with sub-contractors, consultants, and suppliers. Such persons were to be selected based on their ability to deliver products and services in accordance with the defendant’s client requirements and any other relevant requirements. In addition, all sub-contractors engaged to work onsite were, amongst other things, required to be inducted into the IMS with particular emphasis on WHS and environmental controls, and, where relevant, required to submit project-specific quality, WHS and environmental documents. In the absence of suitable documentation of their own, sub-contractors were also required to implement the controls and be monitored in accordance with the requirements set out in the IMS. 

17. Section 5.3 of the IMS dealt with training and site induction. Section 5.3 stated that all personnel engaged to work on a project were required to be inducted in their specific roles and responsibilities. This Section also set out the defendant’s commitment to ensuring that activities conducted by sub-contractors and relevant other parties were conducted safely and without risk to themselves, co-workers, the environment and the public. Finally, the Section reiterated that all sub-contractors engaged to work onsite were required to comply with the IMS and were to be inducted to ensure that they understood their obligations, with performance to monitored and records to be kept. 

18. Section 6.32 of the IMS noted that the defendant had in place standard Safe Work Procedures (SWPs) and guidance documents for inherently hazardous processes that were regularly encountered during typical construction projects. All standard SWPs were expressly stated to form part of the IMS. 

Safe Work Method Statements 

19. Prior to the incident the defendant had implemented a number of Safe Work Method Statements (SWMSs) related to its different activities. These included: 

1. Civilbuild Pty Ltd “Pile Driving” SWMS No. 6, issued 27 January 2016 (the Pile Driving SWMS); 

2. Civilbuild Pty Ltd “Loading and Unloading Trucks” SWMS, issued 25 February 2016 (the Loading and Unloading Trucks SWMS); and 

3. Saunders Civilbuild “Abutment Construction – Rail Bridge” SWMS for Martins Creek Overbridge Site, issued 17 November 2017 (the Martins Creek SWMS). 

20. Mr Brown’s evidence was that the work to be done at the site on 16 February 2018 was governed by the Pile Driving SWMS. Jonathon Bromilow, the General Manager of the defendant, gave similar evidence. 

21. None of the SWMSs in force at the time of the incident contained a reference to the verbal direction or the practice of pre-slinging loads, set out at [27] below.

22. Each SWMS had a place for workers to sign it. In so doing the workers were asked to acknowledge that all work would be carried out in accordance with the particular SWMS.   

Safe Work Procedures 

23. In addition to the SWMSs, the defendant also had a number of SWPs in place prior to the incident. These included: 

1. Saunders Civilbuild “Personal Protection” SWP No. 2 Rev 6, issued 28 February 2016 (the Personal Protection SWP); 

2. Civilbuild Pty Ltd “Use of Lifting Equipment” SWP No. 17 Rev 6, issued 28 February 2016 (the Use of Lifting Equipment SWP); and 

3. Civilbuild Pty Ltd “Operation of Plant and Vehicles” SWP No. 4 Rev 6, issued 28 February 2016 (the Operation of Plant and Vehicles SWP). 

24. None of the SWPs in force at the time of the incident contained a reference to the verbal direction or the practice of pre-slinging loads.¹ 

EFH’s Safe Work Method Statement 

25. Prior to the incident, Mr Edwards had in place a SWMS entitled “Loading and Unloading Plant”, issued 1 November 2015 (the EFH SWMS). 

26. The EFH SWMS did not contain any prohibition similar to the verbal direction or make any reference to the practice of pre-slinging loads.² 

The verbal direction and the practice of pre-slinging loads 

27. In 2017 the defendant issued a verbal direction to its employees that they were not allowed to climb onto the back of trucks or trailers to load or unload them (the verbal direction). At the same time, the defendant introduced a practice of attaching slings to bundles of piles before they were loaded onto trucks so that they could be unloaded at their destination without the need for a person to climb onto the load or onto the back of a truck or trailer. This practice was known as “pre-slinging” the load.  

28. Mr Brown’s evidence was that the verbal direction was given shortly after the acquisition, which occurred on 31 March 2017. Mr Williams’ evidence was that he left the employ of the defendant for 3 or 4 months in 2017 and was made aware of the verbal direction upon his return to work. 

29. The defendant asserted in response to a s 155 Notice issued by Inspector Halcroft, set out at [79] below, that the verbal direction and the practice of pre-slinging loads was introduced in about November 2017. The defendant could not produce any document to prove when the verbal direction was given or when the practice of pre-slinging loads was introduced.

Events of 15 February 2018 

30. The defendant was contracted to Beechwood Homes (NSW) Pty Ltd (Beechwood) to undertake piling works at its sites. The defendant was contractually obliged to conduct a site-specific risk assessment on any Beechwood site that it worked at. The risk assessment required the defendant to submit a SWMS for any high-risk construction work. The defendant’s practice was to have a SWMS for each site that it worked on, that was signed by each of the workers engaged on that site. 

31. On 15 February 2018 the defendant received a Purchase Order from Beechwood to supply and install timber mini piles at 4 Rigney Street, Shoal Bay (the site). The timber mini piles were cylindrical timber logs about 6000mm long and about 200mm in diameter (the piles). 

32. On 15 February 2018 the defendant contracted with Mr Edwards to transport a 16 tonne Zaxis excavator (the excavator) and three bundles of piles from the yard to the site. Each bundle contained about 11 piles and they were strapped together with steel straps.  

33. On the afternoon of 15 February 2018 Mr Edwards attended the yard to pick up the excavator and the three bundles of piles. Mr Brown was present at the yard and assisted Mr Edwards to load the truck.  

34. Mr Brown gave evidence that he told Mr Edwards that the bundles of piles were pre-slung so they could be lifted off the truck from the ground because the defendant had a rule that no one was allowed to get up on the back of trucks. Mr Brown’s evidence was that Mr Edwards replied “OK” and that he seemed to understand what he had been told. 

The incident on 16 February 2018 

35. At approximately 8.00am on 16 February 2018, Mr Brown and Mr Williams arrived at the site and conducted a pre-start inspection for the purpose of undertaking the piling works at the site. About 10 minutes later, Mr Edwards arrived and parked the truck in the centre of the road outside the site. 

36. Mr Brown and Mr Edwards exchanged pleasantries. Mr Brown asked Mr Edwards to move his truck closer to the site to a position where it was further off the road and safer for passing traffic.  

37. No SWMS was gone through or signed on to at the site before the work commenced. Mr Brown had the Pile Driving SWMS with him in his vehicle.  

38. No site induction was conducted on the day of the incident. Mr Brown was not familiar with the requirements of the IMS at that time.  

39. Mr Brown did not know if Mr Edwards had a SWMS relevant to the work at the site on the day of the incident.  

40. Mr Edwards repositioned the truck with the back of the trailer to the south of the access gate of the site, so that the excavator could be driven off the truck and into the access gate of the site. 

41. Mr Edwards lowered the ramps on the trailer and Mr Williams assisted him to remove the chains that were securing the excavator to the trailer. Mr Brown got into the cabin of the excavator and drove it off the trailer and into the access gate of the site. Mr Brown positioned the excavator so that he could use the arm to lift the bundles of piles off the trailer using a chain and hook attached to the arm.  

42. Mr Williams and Mr Edwards packed away the chains that had secured the excavator to the trailer. Mr Edwards then raised the ramps so that he could move the truck in a way that would position the piles adjacent to where Mr Brown had positioned the excavator. After Mr Edwards had moved the truck to this position, Mr Williams and Mr Edwards removed the ratchet straps restraining the piles.  

43. Mr Brown positioned the arm of the excavator above the centre of the piles. Mr Williams attached the end of the two slings attached to the first bundle of piles to the hook attached by a chain to the arm of the excavator. He accessed the end of the slings from the ground and attached them to the hook while standing on the ground. Mr Williams then stepped up onto the low loader part of the trailer to get a better line of sight on where the chain was attached to the slings to observe the lift. 

44. At this time, Mr Williams saw Mr Edwards climbing up onto the piles from the area between the cabin of the truck and the end of the piles.  

45. After Mr Williams attached the slings, Mr Brown next saw Mr Edwards to be standing on top of the piles over the gooseneck of the trailer.  

46. Mr Brown gave evidence that it was not unusual for Mr Brown to climb onto the top of a load to attach slings to lifting equipment. Mr Brown had seen Mr Edwards do it many times before. On the day of the incident, Mr Brown did not say anything to Mr Edwards about him standing on top of the piles because he thought it was safe. 

47. Mr Edwards made his way to where the hook was attached to the slings and unhooked the slings from the hook and then proceeded to attach the front sling to the hook followed by the back sling. He then grabbed the chain attached to the hook and nodded to Mr Brown as the signal to lift the first bundle of piles.  

48. When Mr Brown lifted the load it swung in an anti-clockwise direction. Mr Edwards put his hands on the load to steady it. He was standing in close proximity to the bundle of piles. Mr Edwards then nodded to Mr Brown to lift the piles off. As the piles were lifted, Mr Brown saw Mr Edwards fall backwards and try to grab the bollard at the front passenger side of the truck before falling off the truck to the road on the passenger side of the truck. 

49. Mr Williams could not say if Mr Edwards was hit by the piles or if he tripped. He described Mr Edwards as “diving” for the bollard at the front passenger side of the trailer and trying to “bear hug” it. Mr Williams described that Mr Edwards spun around 180 degrees before falling backwards and landing flat on his back on the road. 

50. Mr Edwards suffered a severe blunt force head trauma. He was taken by ambulance to hospital and underwent emergency neurosurgery. Mr Edwards died six days later.  

Events after the incident 

51. Inspectors McKay and Kauter from SafeWork NSW attended the site as first responders to the incident to take photographs and measurements, get the details of witnesses, and ensure that the site was safe. 

52. Inspector McKay located a copy of the EFH SWMS in the cabin of the truck and took photographs of it. 

53. Mark Benson, the defendant’s Chief Executive Officer, Matthew Brough, the defendant’s Health Environment and Safety Manager, and Mr Bromilow, attended the site. Shaun Iogha of Beechwood also attended the site. 

51. Inspector Kauter issued a Prohibition Notice preventing the remaining bundles of piles being removed from the truck until SafeWork NSW was provided with evidence that the workers involved in that task were prohibited from accessing the back of the truck or trailer or standing on the load to do so. 

52. A toolbox talk was held at the site between the defendant’s representatives and Mr Iogha. The method of unloading the piles from the truck was discussed and it was resolved to make a handwritten amendment to the Pile Driving SWMS, which would reiterate the importance of not climbing on the back of the truck. 

53. Mr Bromilow made a handwritten amendment to a copy the Pile Driving SWMS, on which the details of the site had been completed. The handwritten amendment was made in the following terms, under Step 8 – “Pile Rig Set Up”: 

Unload Piles from Truck DO NOT access the Back of truck at any stage. 

Load to be slung from the ground.

57. Mr Brough, Mr Brown and Mr Williams all signed onto the amended Pile Driving SWMS as “workers on site”. Mr Bromilow signed the amended Pile Driving SWMS as the person from the defendant responsible for supervising the work and the content of the SWMS. 

58. After a discussion about the handwritten amendment to the Pile Driving SWMS, Inspector Kauter considered that the Prohibition Notice had been satisfied and allowed the unloading of the remaining piles to take place. 

59. Mr Bromilow’s evidence was that in preparing the amended Pile Driving SWMS, he followed the direction of the SafeWork Inspectors to insert the handwritten words into the document. I do not accept that evidence for the following reasons. First, it was not put to the Inspectors that either one of them gave a direction in those terms. In the context of the system of self-regulation imposed by the Act, I think that it is very unlikely that such a direction was given. Second, Mr Bromilow was a poor witness. He came across as an advocate for the defendant. For example, he gave evidence on a number of occasions that the Pile Driving SWMS in force at the time of the incident prescribed adequate controls and identified the risks involved in the tasks that were being undertaken at the site on the day of the incident. That evidence was simply not true. In addition, it was directly inconsistent with the steps that the defendant took to amend its procedures and retrain its workers following the incident. 

Changes to the system of work following the incident 

Training of employees and contractors on 21 February 2018 

60. On 20 February 2018 Mr Benson sent an email to Mr Bromilow directing him to have all employees watch a SafeWork NSW video entitled “Falls from Flatbed Trucks and Trailers Safety Alert” (the video) by the end of the following day.  

61. Later on 20 February 2018, Mr Bromilow distributed by email a document entitled “Saunders Safety Alert” that had been prepared in relation to the incident (the Safety Alert). The Safety Alert referred to the video and contained a number of messages conveyed in it. Mr Bromilow directed that the Safety Alert be given to all employees, including labour hire employees and sub-contractors currently working for the defendant (the workers). He also directed for the Safety Alert to be discussed at a toolbox meeting to be held by close of business on 21 February 2018, and that the video be shown to the workers at that meeting. He requested that the attendance of the workers at those toolbox meetings be documented. 

62. The video was 2 minutes and 40 seconds in duration and was narrated by a SafeWork Inspector. The footage throughout is of workers loading and unloading freight in a warehouse where various safety controls are being utilised. The video opens with a brief discussion of an incident which gave rise to the creation of the video. That incident involved a worker suffering fatal injuries as a result of tripping and falling off a truck whilst it was being unloaded by a forklift in a situation where no precautions had been taken to prevent the fall. The video then sets out some “simple steps” that businesses can take to keep workers safe. Staying on the ground is the primary recommendation, and measures such as using suitable equipment to load and unload, pre-configuring the load, pre-slinging the load where possible, and using load restraints, are proposed as ways of achieving this. The Inspector then stresses that, when working from the ground is not possible, there must be a safe means of accessing and, if necessary, working on, the tray or trailer. Measures such as guard rails and temporary work platforms, work positioning systems such as travel restraints, and retractable ladders with steps or handrails, are discussed. The Inspector then cautions that fall arrest systems should only be used where other effective controls are not practical. The video concludes with a dot point summary of the recommended measures and relevant considerations discussed in the video and emphasises the importance of businesses working together to manage the risks and ensure the health and safety of those who work with flatbed trucks and trailers. 

63. The Safety Alert was prepared in the immediate aftermath of the incident while Mr Edwards was still in a critical condition in hospital. The document began with a description and details of the incident, with photographs of Mr Edwards’ truck at the site being provided as a visual aid. The document then listed five items under the heading “Immediate Actions/Recommendations/Lessons”. Item 1 instructed readers to “toolbox” the Safety Alert with all employees, highlighting the importance of controlling the risk of a fall from height and requiring attendance at those meetings to be documented. Item 2 provided that all current and future SWMSs were to be reviewed and updated, including with mandatory changes to be made to control the risk of falling from heights and setting out the procedure by which this would occur. Item 3 reinforced working from the ground as the safest option and specified the need for appropriate fall protection and other measures where workers were required to work from a height. These precautions were required to be updated and detailed in all relevant SWMSs. Item 4 stated that where workers were required to work from a height, they should use a fall-prevention device such as a temporary work platform, handrails, guardrails, retractable handrails, or scaffolding. Those matters were also required to be updated and detailed in all relevant SWMSs. Item 5 required all company supervisors to show the video to all work crews to ensure awareness of safety risks and prevention measures associated with working at heights, with signed attendance sheets to be kept to verify compliance from all sites. Page 2 of the Safety Alert emphasised the role of all persons in preventing hazards from doing harm and the attendant duty of care, and reiterated the “S.T.A.R.T Right System” of “Stop, Think, Assess, Review, Talk”. 

Introduction of a Driver Induction Package 

64. On 1 March 2018 the defendant introduced a Driver Induction Package providing information on the defendant’s “Golden Rules” of safety, personal protective equipment (PPE) requirements, site traffic management, approved load restraints and the loading and unloading of trucks from the ground. As part of the Package, drivers were required to watch the video and then to complete an assessment which was to be kept on file by the defendant. Pages 6 and 8 of the Package are produced in Figure 1 below. 

Driver Induction Package pages 6 and 8 text version (15195, docx)

Changes to SWMSs 

65. The Saunders Civilbuild Truck Operations SWMS was issued on 17 April 2018 (the Truck Operations SWMS). The Truck Operations SWMS included the following new provisions that did not appear in any of the documents referred to in [19] and [23] above: 

1. At Step 1, all truck drivers were required to complete the Saunders Truck Drivers Induction and were required to hold a MR driver’s licence. 

2. At Step 4, which related to accessing the back of a truck during loading and unloading, the hazard of a fall from height was identified. The safety control measures were stated as follows and highlighted in yellow on the document; 

Work on ground or on solid construction – Rig loads from ground. DO NOT ACCESS trucks/trailers without appropriate fall protection. Pre sling loads, use load restraints. 

If you must work from height, fall prevention must be in place to prevent the risk of a fall. This may include temporary work platforms, handrails, guardrails, retractable handrails and or scaffolding. 

66. The Saunders International Pile Driving SWMS, issued on 4 June 2018, included the following new provisions: 

1. At Step 9, being the delivery of plant and materials, the safety control measures included: 

Accompany the driver ensuring that the driver adheres to site requirements…

2. In the same Section, the words quoted in [65(2)] above were included. 

67. The Saunders Civilbuild Loading and Unloading of Trucks SWMS, issued on 1 July 2019, contained the words quoted in [65(2)] above under Step 1. 

68. The Saunders Civilbuild Lifting Loads Using a Crane SWMS, issued on 2 September 2019, contained the words quoted in [65(2)] above under Step 9. 

69. Mr Brown’s evidence was that he became aware of the amendments to the defendant’s SWMSs after the incident and that he was required to do a course online to go through what to do and what not to do in the loading and unloading of trucks. He understood that his role as a supervisor for the defendant was to enforce the controls provided for in the SWMSs. 

70. Mr Williams’ evidence was that the rules for unloading trucks were more rigorously enforced after the incident. He was made aware of the changes made to the SWMSs after the incident. Mr Williams’ evidence was that most of the practices referred to in the amendments were being applied before the incident. Mr Williams gave evidence that he was provided with training on the content of the amended version of the Pile Driving SWMS referred to in [66] above.  

Relevant findings on the evidence 

71. At trial, I made the following relevant findings of fact for the reasons given at [80]-[94] of the verdict judgment. 

72. The verbal direction was given by the defendant to its employees and the defendant introduced the practice of pre-slinging loads at the same time. 

73. The defendant did not systematically convey the verbal direction to the contract drivers or systematically consult with the contract drivers on that issue, prior to the incident. The verbal direction was not referred to in any of the SWMSs that could have applied to the work being performed on the day of the incident. 

74. Mr Williams did not inform Mr Edwards of the verbal direction on 15 February 2018. 

75. At trial, I found that the defendant had breached it work, health and safety duty by failing to have in place a safe work method in the form it adopted after the incident [176], failing to adequately train the workers on the safe work method [187] and failing to provide adequate supervision of the workers during the unloading operation at the site on the day of the incident [194]. 

Offender’s case on sentence

76. The offender relied on an affidavit sworn by Mr Benson on 24 February 2022. Mr Benson was present in court for the sentence hearing and not required for cross-examination. The content of Mr Benson’s affidavit can be summarised as follows. I will not repeat matters I have already referred to.

Relevant background

77. Mr Benson has over 27 years’ experience in executive management roles in the engineering and construction industry. He has been a Director of Saunders International since August 2015 and the Managing Director since October 2015. He has been a director of the offender since February 2017. His role as one of two Directors of the offender involves overall responsibility for the business. Mr Benson holds Advanced Diplomas in Management and Project Management and has an electrical engineering background.

78. Saunders International purchased the assets of Civilbuild in March 2017 following the incorporation of a new entity, Saunders Civilbuild, in February 2017. Saunders Civilbuild is a 100% owned subsidiary of Saunders International. As at February 2022, the offender had approximately 80 employees and engaged approximately 20 contractors and subcontractors.

Safety record

79. The offender completes approximately 30 major projects per year. Projects that the offender has worked on include the WestConnex Tunnel, Sydney Metro Upgrades and the Ballina Bypass.

80. The present offence was the first time that the offender had been before the court for a safety offence. The offender’s Safety Total Recordable Injury Frequency Rate has reduced year on year since its incorporation.

Cooperation with SafeWork NSW

81. The offender fully cooperated with SafeWork NSW throughout the investigation of the incident. It responded promptly to each of the notices issued by the Regulator in relation to the incident, and each notice was complied with.

82. Three employees of the offender, Mr Bromilow, Mr Williams and Mr Brown, participated in interviews with SafeWork NSW. These interviews were conducted during work hours and the offender remunerated the employees as if they had been on site. The offender accommodated the Inspectors’ visit to the incident site and made its employees and a conference room available for the purposes of the investigation.

Approach to workplace safety

83. Mr Benson deposed that since his appointment as Managing Director of Saunders International, that company and its subsidiaries had placed a considerable emphasis on improving workplace safety. Mr Benson acknowledged that high safety standards are essential to running a successful construction business.

84. Mr Benson stated that following the asset purchase and incorporation of the offender, he took immediate actions to understand and enhance the safety systems that the offender had in place.

85. For example, in April 2017, workers completed a corporate induction and a health and safety meeting was arranged to identify particular areas of focus and improvement with regard to safety in the offender’s business. Workers were also issued with new PPE.

86. Further, in May 2017, the following steps were taken:

1. Mr Stevenson, the Safety Manager at Saunders International, conducted a one-week intensive safety review across the offender’s business. This resulted in feedback being obtained from the offender’s crews and an action list being formulated for the offender to work towards improving the safety of company operations;

2. The offender rolled out access to an Employee Assistance Program;

3. The offender began publishing an internal newsletter focusing on safety. This newsletter was later replaced with a regular meeting; and

4. The offender published its strategic business plan, which emphasised the importance of workplace safety in the context of the offender achieving its corporate objectives.

87. In the months following, additional safety initiatives were also implemented, including:

1. JSEA Cards were introduced to improve on-job risk assessments;

2. An external consultant was engaged to provide staff with safety leadership training and enhance the offender’s safety culture;

3. The offender conducted a National Safework Australia Month campaign to increase focus on safety improvements and enhance safety culture; and

4. The offender rolled out a ‘Zero Harm’ safety culture initiative.

88. In October 2017, the offender was nominated for a Hunter Safety Award for the manufacture and introduction of a ‘spreader bar’ tool to limit the safety risks associated with working at heights while loading planks.

89. Since the incident, the offender has continued to maintain a strong focus on WHS and has developed the following safety initiatives:

1. Assurance of controls has increased with more inspections, site visits and audits being undertaken by the Safety, Health, Environment and Quality team, the Executive Leadership team and members of the Board. This initiative is designed to highlight the commitment of leadership to workplace safety and ensure that safety systems remain central to the offender’s thinking;

2. Ongoing third-party accreditation has been maintained under ISO 9001, a quality management system that assists the offender in meeting customer and stakeholder needs within legislative and regulatory requirements. The offender has also achieved accreditation under ISO 45001, a standard that specifies requirements for a WHS management system, a year earlier than required;

3. Saunders International is in the process of obtaining accreditation from the Federal Safety Commissioner. This requires building and construction companies to adhere to a range of operational and reporting practices to improve site safety;

4. Ongoing safety leadership training is being conducted through a program called “Leading Everyday”. Mr Williams and Mr Brown have participated in this program;

5. An ongoing continuous improvement initiative called ‘Raise the Bar’ was introduced in July 2020 and has been rolled out and broadly promoted within the offender’s business since its inception. This initiative is centred around a set of key principles, including safety principles, and over $300,000 has been invested in it to date;

6. The offender’s Safety, Health, Environment and Quality management software (MyOsh) has been upgraded on multiple occasions;

7. The offender has made additional investment in safety staffing resources, with a new Safety Manager, multiple experienced Project Managers and a Safety Coordinator commencing employment in the business. A third party WHS Claims Manager has also been engaged; and

8. The offender is currently in the process of revising its Life Saving Rules to include “always use your personal ownership for safety to stop unsafe behaviour at work”.

Corporate citizenship

90. The offender has donated and contributed to community and charitable organisations throughout its history, including by way of the following activities:

1. In late 2020, the offender participated in the delivery of 100 Food Bank food hampers. The offender provided the food and staff donated their time to pack the hampers for underprivileged children;

2. In 2020, staff participated in a Men’s Health Suicide Prevention initiative. The offender continues to support this cause; and

3. In 2020 and 2021, staff participated in the MyMarathon Challenge, in which the broader Saunders International group raised a total of $4,777 for heart research in 2021.

91. Saunders International, on behalf of the broader corporate group including its subsidiaries, also participates in a number of charitable and community initiatives, including for example, in 2021:

1. It sponsored five tickets valued at $900 for Community Mental Health Awareness’ ‘Movie Extravaganza’ event;

2. It donated $5,000 to the Westpac Rescue Helicopter Service; and

3. It sponsored the Liverpool West Rotary Children’s ‘Circus Extravaganza’ event for 15 children, valued at $900. Saunders International has contributed over $3,000 to this initiative since 2016.

92. In 2019, Saunders International also helped the Sydney Children’s Hospital raise $20,000.

Statement of regret

93. Mr Benson acknowledged that Mr Edwards’ death was tragic and expressed regret in relation to the incident that led to his death. Mr Benson also recognised that Mr Edwards had a long history of working with the offender and its predecessor and had many close working relationships with employees of the business.

94. On the day of the incident, Mr Benson and Mr Bromilow made contact with Mr Edwards’ wife and visited the hospital.

95. In the days following the incident and prior to Mr Edwards’ death, Mr Bromilow stayed in regular contact with Mr Edwards’ wife, offered the company’s support and provided access to the company’s Employee Assistance Program. Mr Benson and Mr Bromilow attended Mr Edwards’ funeral on behalf of the offender. Mr Benson deposed that Mr Edwards’ death has had a profound impact on him and on the offender’s workforce. He expressed sympathy for Mr Edwards’ family. The offender continues to offer ongoing support to its workers in relation to the incident. All of the offender’s workers were offered counselling through the company’s Employee Assistance Program.

93. Mr Benson stated that the incident and its lasting impact served as a constant reminder of why a staunch commitment to workplace safety is so important and why the offender must continue to stay vigilant and continually enhance its safety systems.

Consideration

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

Objective seriousness

98. The offence is one of significant objective gravity.

99. The risk of a worker falling from a load on a trailer was known to the defendant. It adopted the verbal direction and the practice of pre-slinging loads to eliminate or minimise the risk.

100. The risk was likely to result in harm if adequate precautions were not taken. This was a case where the defendant had taken some steps but did not go far enough to protect workers such as Mr Edwards.

101. The consequences of the risk included a risk of death and serious personal injury, but the risk posed to Mr Williams was far less significant when compared to the risk posed to Mr Edwards.

102. The available steps to eliminate and/or minimise the risk were well known in the industry and had been the subject of SafeWork educational material that was publicly available.

103. The steps that could have been taken to advise the contractors of the verbal direction and to ensure that they complied with it were relatively simple and could have been implemented with little inconvenience and expense. In particular, the defendant through its supervisor Mr Brown should have supervised the work in such a way as to prevent both Mr Edwards and Mr Williams from climbing on the trailer on the day of the incident. The steps taken after the incident demonstrate that the amendment of the safety documents and the training of the workers was undertaken with minimal inconvenience and at a proportionate cost.

104. I have taken into account that Mr Edwards was an experienced owner/operator of the truck from which he fell and it is likely that he had climbed onto the trailer and loads on many previous occasions. It is appropriate to recognise that the defendant had limited opportunity to influence the way in which Mr Edwards worked, notwithstanding my findings that it could have done so.

105. The death of Mr Edwards is an aggravating factor.

106. I have taken into account the maximum penalty for the offence.

Deterrence

107. 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 Ltd v Nash [2016] NSWCCA 37 at [180].

108. The penalty imposed must also provide for specific deterrence. The defendant continues to operate a business that poses significant risks to workers. The need for specific deterrence is reduced by reference to the offender's previous good record and its comprehensive response to the incident.

Aggravating factors

109. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.  In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Edwards is sufficient to establish the aggravating factor.

Mitigating factors

110. The defendant does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

111. The defendant has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The defendant had taken some steps prior to the incident to respond to the risk and it took more comprehensive steps after the incident. I am satisfied on the balance of probabilities that the defendant has demonstrated that it has good prospects of rehabilitation.

112. The defendant co-operated with the SafeWork investigation: s 21A(3(m) Crimes (Sentencing Procedure) Act 1999.

113. The defendant through its Director, Mr Benson, expressed some regret for the incident and sympathy for Mr Edwards’ family. Whilst this does not satisfy the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, these matters can be taken into account in mitigation.

114. The defendant has demonstrated by its financial and other contributions to the community and to charitable works that it is a good corporate citizen.

Adverse Publicity Order

115. A court may make any of the other orders provided for by Division 2 of Part 13 of the Act, in addition to any other penalty imposed, if the court finds a person guilty or convicts the person of an offence: ss 234 and 235 of the Act.

116. The Court may make an adverse publicity order to publicise the offence, its consequences, the penalty imposed and any related matter: s 236 of the Act.

117. The prosecutor read an affidavit of Skye Buatava affirmed 4 April 2022 on this issue.

118. The prosecutor seeks an adverse publicity order to the effect that the offender be required to publish the notice in Annexure A to this judgment for a period of six months, in two industry publications, namely; the Master Builders Association Magazine and the Civil Contractors Federation Bulletin. Each of these publications is published quarterly and the prosecution seeks that the notice be published in two consecutive issues, at a cost of $3,800 per issue and $1,070 per issue respectively (total $9,740).

119. The MBA Magazine has a circulation of 8,000 and the CCF Bulletin has a circulation of 1,500.

120. The proposed adverse publicity order is sought to raise awareness in the building and construction industry of the risk of falling from height during the loading or unloading of plant and materials for use at building sites. Ms Buatava deposed that there have been 16 deaths nationally from falls from mobile plant in the period 2016-2020 and nine notifications of serious injuries from falling from trucks in 2020.

121. The defendant opposed the adverse publicity order on the basis that Ms Buatava’s evidence was inadmissible and further that it generally did not support the making of the order. As to the first point, the rules of evidence do not apply in sentence proceedings: s 4 Evidence Act 1995. As to the question of weight, this is a matter for the Court to assess by reference to the evidence and the objects of the Act.

122. I am satisfied that the adverse publicity order is warranted in this case for the following reasons. First, the objects of the Act include protecting workers through the elimination or minimisation of risks arising from work from specified types of substances or plant and securing compliance with the Act through effective and appropriate compliance and enforcement measures. One way of promoting those objects is to publicise the existence of a risk in a particular activity, how risks can be eliminated and how the enforcement measures in the Act are applied to deal with a non-compliant PCBU.

123. Second, the purposes of sentencing include deterrence and denunciation of the conduct of the offender. General deterrence cannot be achieved without some publication of the sentencing outcomes for similar offences. The proposed adverse publicity order is specifically targeted at a class of persons who are in a position to commit similar offences. Further, the adverse publicity order will denounce the conduct of the offender. This is important in the ordinary way and also to indicate that in a strict liability offence even a comprehensive system needs to be reviewed to ensure that important safety measures are comprehensively implemented.

124. Third, the costs of the adverse publicity order are modest.

125. Finally, I have taken into consideration that the defendant tenders for a lot of major government projects, such as bridge building projects, that will require it to disclose the circumstances of this offence as a factor to be considered by the person issuing the tender. Whilst I accept that this type of disclosure is potentially detrimental to the defendant’s business, it is fundamentally different to the disclosure involved with an adverse publicity order, which is intended to reach a wider audience for the deterrent and denunciative purposes of sentencing.

Penalty

126. Saunders Civilbuild Pty Ltd is convicted.

127. I have taken into account the Victim Impact Statement (VIS) of Tracey Edwards. Mr and Mrs Edwards enjoyed a long and happy relationship of almost 30 years. They spent as little time apart as possible and were very close. The VIS conveyed the enormous loss suffered by Mrs Edwards and the family. I have taken into account the impact of Mr Edwards’ death on his family as harm done to the community.

128. I impose a fine of $375,000.

129. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

130. The defendant must publish the Notice set out in Annexure “A” by causing it to be published on or before 30 June 2022, or the first edition of the relevant publication after that date, in two consecutive editions of each of:

1. The Master Builders Association Magazine; and

2. The Civil Contractors Federation Bulletin.

131. The Notice must:

1. be of a size no less than a full page in the Magazine or at least 28 cm x 5 columns in size;

2. use a minimum type size of 12 point Times New Roman or equivalent; and

3. be in full colour.

132. The offender is to notify the prosecutor on or before 5pm on 30 June 2022 with evidence that the adverse publicity order has been complied with.

133. The defendant is to pay the prosecutor’s costs of the proceedings.

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APO (Saunders Civilbuild Pty Ltd) 08.03.22 (clean) (18200, docx)

Amendments

19 May 2022 - Inclusion of moiety paragraph.

09 June 2022 - Citation of verdict judgment on cover sheet and [2] of the judgment changed to read: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (the verdict judgment).

Decision last updated: 09 June 2022