Citation: Susan McCarrey, National Rail Safety Regulator v Sydney Trains [2019] NSWDC 453
Court: District Court of New South Wales
Date: 2 September 2019
Judge: Russell SC DCJ
Background
Sydney Trains, a body corporate constituted under the Transport Administration Act 1988 and an accredited rail transport operator, appeared for sentencing after pleading guilty to two Category 2 offences under the Rail Safety National Law (NSW). Both charges concerned failures to ensure, so far as reasonably practicable, the safety of its railway operations, where those failures exposed workers to a risk of death or serious injury.
The charges arose from events on the night of 17 to 18 June 2016 at Clyde, NSW, where two teams of workers were present at a worksite on the up main line. The Civil Team was replacing rotten sleepers at a set of points, and the Signals Team was providing support. The up main line was operational throughout, with passenger trains travelling at up to 80 km/h.
The first charge (the Work Charge) related to the fatal striking of worker Charles Lagaaia by a passenger train on 18 June 2016. The second charge (the Preparation Charge) related to the earlier exposure of the Civil Team to risk between 10:30 pm on 17 June 2016 and 12:10 am on 18 June 2016, arising from a failure to implement any recognised method of work on track protection in accordance with the relevant standard (NWT 300 Planning Work in the Rail Corridor).
Legal Issues
- What penalty was appropriate for each Category 2 offence under s 59 of the Rail Safety National Law (NSW), taking into account objective seriousness, mitigating and aggravating factors, general and specific deterrence, and totality?
- What discount, if any, should be applied to reflect the guilty pleas?
- What orders, if any, should be made as to prosecution costs?
Decision
The Work Charge: The court found that Sydney Trains failed to take several reasonably practicable measures before allowing workers onto the worksite. These included: conducting a proper worksite briefing and induction informing workers of safe locations and implemented protections; requiring worksite supervisors to verify that workers had received the protection pre-work briefing; requiring the protection officer to show workers a diagram or map of the protection arrangements; and implementing a system of physical signs, tape, barriers or other effective controls. The court assessed this charge as the more serious of the two, given that it resulted in Mr Lagaaia's death.
The Preparation Charge: In relation to the Civil Team's earlier exposure to risk, the court found that Sydney Trains had failed to put in place any recognised applicable method of work on track protection in accordance with NWT 300. The court treated this charge as less serious than the Work Charge, though still a meaningful breach of the safety duty.
Penalty and plea discount: The court considered the objective gravity of each offence, the importance of general deterrence in rail safety prosecutions, and the significant remediation steps taken by Sydney Trains following the incident. A 25% reduction was applied to each fine to reflect the guilty pleas, consistent with the applicable sentencing principles. The court also applied totality principles in setting the final figures. Applying the principles from Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, the court noted that the size and financial capacity of a large corporate defendant is relevant to the impact of a fine.
Costs: The parties agreed that Sydney Trains would pay the prosecutor's costs, and the court made orders accordingly.
Orders Made
Work Charge (2018/183611):
- Sydney Trains convicted
- Fine of $500,000 reduced by 25% for guilty plea: fine of $375,000 imposed
- 50% of the fine to be paid to the prosecutor pursuant to s 260A of the Rail Safety National Law (NSW)
- Sydney Trains to pay the prosecutor's costs
Preparation Charge (2018/183633):
- Sydney Trains convicted
- Fine of $200,000 reduced by 25% for guilty plea: fine of $150,000 imposed
- 50% of the fine to be paid to the prosecutor pursuant to s 260A of the Rail Safety National Law (NSW)
- Sydney Trains to pay the prosecutor's costs
Key Takeaways
- A Category 2 offence under s 59 of the Rail Safety National Law (NSW) is established where a person with a safety duty fails to comply with that duty and the failure exposes an individual to a risk of death or serious injury, regardless of whether actual harm occurs on every occasion.
- Under the Rail Safety National Law, the duty to ensure safety "so far as is reasonably practicable" requires a rail operator to eliminate risks where possible, or otherwise minimise them, having regard to likelihood of harm, degree of potential harm, available measures, and the proportionality of costs involved.
- Failure to conduct worksite briefings, verify workers had received protection inductions, produce diagrams of protection arrangements, and implement physical site controls each constituted measures that were reasonably practicable and whose absence grounded criminal liability in this case.
- The District Court applied a 25% guilty plea discount and considered totality across two related offences, resulting in fines of $375,000 and $150,000 respectively, with 50% of each directed to the prosecutor pursuant to the statutory scheme.
- General deterrence carries significant weight in rail safety prosecutions, and the Court of Criminal Appeal's guidance in Unity Pty Limited v SafeWork NSW confirms that the financial scale of a large corporate defendant is a relevant consideration when assessing the real impact of a financial penalty.
Legislation and Cases Referenced
Legislation:
- Rail Safety National Law (NSW) (Rail Safety (Adoption of National Law) Act 2012 (NSW)), ss 3, 46, 47, 52, 59, 260A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 6
- Transport Administration Act 1988 (NSW)
Cases:
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432