Citation: SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited [2020] NSWDC 597
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Russell SC DCJ
Background
Two major construction companies, Lendlease Engineering Pty Limited and Bouygues Construction Australia Pty Limited, formed a joint venture to design and construct the NorthConnex motorway tunnel project in Sydney. Both companies were jointly responsible for all works on the project. Lendlease was appointed as principal contractor, and the two companies jointly employed the workers on site.
On 23 May 2017, Mr James Adams, a tunneller with over 20 years of mining and tunnelling experience, was fatally injured at the Wilson Road site. Mr Adams was performing a routine task known as "desludging," which involved diverting the flow of sediment-laden wastewater between two above-ground tanks. During this task, a sudden uncontrolled release of stored energy in the pressurised piping system (PPS) caused components to strike and fatally crush him.
The PPS had been designed to pump wastewater and sediment approximately 80 metres up a shaft from the underground tunnel to surface tanks, using a combination of a pump and compressed air injected into the pipes. Both companies bore responsibility for the design, construction, operation and maintenance of that system.
Legal Issues
- Whether each company failed to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing a worker to a risk of death or serious injury contrary to section 32 of that Act
- The appropriate sentence, including the objective seriousness of each offence, applicable mitigating and aggravating factors, and the weight to be given to the guilty pleas
- The capacity of each defendant to pay the penalty
- The appropriate costs order
Decision
Both companies pleaded guilty. The court assessed the objective seriousness of each offence at a level that, while not at the most serious end of the spectrum, was still substantial. Multiple interrelated failures contributed to the incident: the absence of a Safety in Design process for the PPS; failure to implement a system that minimised the risk of uncontrolled energy release; inadequate welds attaching the pipe clamp to the support structure; failure to implement and enforce a Safe Work Method Statement for desludging operations; and inadequate information, instruction and training provided to workers.
The court found several aggravating features, including that the risk was foreseeable and preventable, and that the fatality occurred in the course of a routine, recurring task. No aggravating factors were identified under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) beyond those inherent in the offence itself. In mitigation, the court accepted that both companies had no prior convictions, had cooperated with investigators, had expressed genuine remorse, and had taken remedial steps following the incident. Both were found to have the financial capacity to pay the penalties imposed.
The court applied a 25 percent reduction to the base fine for each defendant to reflect their early guilty pleas, consistent with the approach in Green v The Queen. The base fine of $500,000 for each company reflected the court's assessment of objective seriousness, the purposes of general and specific deterrence, and the maximum penalty of $1,500,000.
The court also acknowledged the profound impact of Mr Adams's death on his family. His son, Dallas Adams, gave victim impact evidence describing severe and ongoing psychological harm, financial hardship, and an inability to return to full-time work in his trade.
Orders Made
- Lendlease Engineering Pty Limited convicted and fined $375,000 (base fine of $500,000, reduced by 25% for guilty plea)
- Bouygues Construction Australia Pty Limited convicted and fined $375,000 (base fine of $500,000, reduced by 25% for guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of each fine to be paid to the prosecutor
- Each defendant ordered to pay agreed prosecution costs of $45,000 (total costs $90,000)
Key Takeaways
- Multiple compounding failures in the design and operational management of a temporary pressurised system, each individually remediable, combined to create the conditions for a fatal workplace incident. The District Court treated the cumulative nature of those failures as central to the assessment of objective seriousness.
- A base fine well below the statutory maximum of $1,500,000 was imposed on each defendant, reflecting a finding that the offences, while serious, did not fall at the most extreme end of the objective seriousness scale.
- Guilty pleas attracted a 25 percent discount on the base fine for each defendant, applied in accordance with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where two entities in a joint venture share responsibility for the same statutory duty and both plead guilty to the same offence, the court may impose equivalent penalties on each, assessed independently according to each company's culpability.
- The absence of a Safety in Design process and the failure to enforce a Safe Work Method Statement for a routine, recurring task were identified as significant contributing failures, relevant to the assessment of objective seriousness under section 32 of the Work Health and Safety Act 2011 (NSW).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
- Occupational Health & Safety Act 1983 (NSW), ss 8, 15, 16
Cases
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263; (2001) 109 IR 316
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432