Citation: SafeWork NSW v Titan Cranes and Rigging Pty Ltd [2019] NSWDC 714
Court: District Court of New South Wales
Date: 29 November 2019
Judge: Scotting DCJ
Background
Titan Cranes and Rigging Pty Ltd was engaged to erect, operate, maintain, and dismantle a JASO J-280 luffing tower crane at a high-rise construction site in North Sydney. The company had originally planned to dismantle the crane using a method prescribed in the manufacturer's handbook, which required closing the adjacent public road. When obtaining the necessary Road Occupancy Licence proved difficult and the client requested revised dates, the company developed an alternative method involving splitting the crane jib into sections and lowering them using a second tower crane.
That alternative method deviated from a revised procedure that JASO (the Spanish manufacturer) had provided in late August 2016. An amended system of work was prepared internally but was never submitted to JASO for approval, due to miscommunication between the company's employees. The company proceeded with its own amended method on 25 September 2016.
During dismantling, the crane jib collapsed and fell uncontrollably while three workers were positioned on it. All three were taken to hospital. Two sustained serious injuries, including one worker who suffered spinal fractures, bilateral rib fractures, a lung contusion, an open elbow fracture, and a fractured shoulder.
Legal Issues
- Whether Titan Cranes, as a person conducting a business or undertaking with a duty under section 19(1) of the Work Health and Safety Act 2011 (NSW), failed to comply with that duty by exposing workers to a risk of death or serious injury contrary to section 32 of that Act.
- What penalty was appropriate, having regard to the objective seriousness of the offence and all relevant aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- What discount, if any, was warranted for a guilty plea and cooperation with the investigation.
Decision
Titan Cranes pleaded guilty to the single charge under section 32 of the Work Health and Safety Act 2011 (NSW), which carries a maximum fine of $1,500,000 for a corporation. Scotting DCJ assessed the objective seriousness of the offence and identified several aggravating factors, including that the risk of serious injury was real and foreseeable, the workers were particularly vulnerable given their exposed positions on the crane jib, and the company had access to manufacturer guidance that it ultimately chose not to follow or verify.
His Honour identified significant mitigating factors. The company had no prior convictions and had otherwise maintained substantial safety systems. The failure arose from a breakdown in internal communication rather than a deliberate disregard for safety. The offender also cooperated with SafeWork NSW's investigation, supported the injured workers, employed a National Work Health and Safety Manager following the incident, and participated in industry-wide safety initiatives with SafeWork NSW.
The court accepted that the offender had demonstrated genuine remorse through the evidence of its officer, Mr Kelly, and through post-incident conduct. Taking into account the objective seriousness, the absence of prior convictions, good prospects of rehabilitation, and the offender's status as a good corporate citizen, the court assessed the appropriate fine before discount at $520,000.
A 25% discount was applied to reflect the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
Orders Made
- Titan Cranes and Rigging Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $390,000 imposed (reduced from $520,000 by 25% to reflect the guilty plea).
- Titan Cranes and Rigging Pty Ltd to pay the prosecutor's costs in the agreed sum of $42,000.
Key Takeaways
- The District Court confirmed that departing from a manufacturer's recommended dismantling procedure, without obtaining the manufacturer's approval for the amended method, can form the basis of a serious work health and safety contravention where workers are thereby exposed to a risk of death or serious injury.
- A fine well below the statutory maximum is not inherently inconsistent with a finding of objective seriousness; the court applied a structured analysis of aggravating and mitigating factors before arriving at the pre-discount figure of $520,000 against a maximum of $1,500,000.
- Post-incident remediation, including purchasing replacement equipment, strengthening internal safety systems, and participating in industry education programs with the regulator, was treated as evidence of genuine rehabilitation and supported a finding of good prospects of rehabilitation.
- Under section 22 of the Crimes (Sentencing Procedure) Act 1999, a 25% discount applied where a guilty plea was entered, reflecting both its utilitarian value to the justice system and its significance as an indicator of remorse.
- Miscommunication between employees, rather than deliberate non-compliance, did not eliminate corporate liability but was treated as a mitigating circumstance when assessing objective seriousness and the appropriate penalty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412