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District Court 18 December 2020

R v Brady Marine & Civil Pty Ltd

[2020] NSWDC 775

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF A PERSON UNDERTAKING BUSINESS REASONABLE PRACTICABILITY LIKELIHOOD OF THE RISK

Citation: R v Brady Marine & Civil Pty Ltd [2020] NSWDC 775
Court: District Court of New South Wales
Date: 18 December 2020
Judge: Strathdee DCJ

Background

Brady Marine & Civil Pty Ltd was a marine construction company engaged as a subcontractor by McConnell Dowell Constructions to perform piling works at the Barangaroo Ferry Wharf development in Sydney. The work was carried out on a barge, the Maeve Anne, equipped with a 250-tonne crane. A third company, Constructive Workforce Pty Ltd, supplied casual labour to Brady Marine for the project.

In late February 2017, two large steel headstocks (each weighing approximately three tonnes) were removed from temporary construction works and placed upright on the barge without any form of restraint. There was no room to store them on their sides, and no supply barge was arranged to remove them from the worksite promptly. Critically, no adequate risk assessment was conducted by any party in relation to storing the headstocks upright and unrestrained.

On 1 March 2017, workers were directed to remove locating guides welded to the tops of the headstocks using a crane. During that operation, a worker was fatally struck when one of the headstocks fell. The risk of a headstock toppling if a sufficient horizontal force was applied by the crane had not been identified before the task commenced.

  • Whether Brady Marine & Civil Pty Ltd breached its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by failing to ensure, so far as reasonably practicable, the health and safety of workers
  • Whether that failure exposed workers to a risk of death or serious injury, constituting a Category 2 offence under s 32 of the Act
  • What was the appropriate sentence, including the weight to be given to aggravating and mitigating factors and the discount applicable for an early guilty plea

Decision

Brady Marine pleaded guilty on 15 June 2020 to the charge under s 32 of the Work Health and Safety Act 2011 (NSW). The offence carries a maximum penalty of $1,500,000. The plea was entered before the matter was listed for trial.

Strathdee DCJ found that the gravamen of the offence was the failure to conduct an adequate risk assessment for storing large, heavy steel headstocks upright and unrestrained on the barge. No party had identified the risk that a headstock could fall if a sufficient lateral force was applied during crane operations. That failure had fatal consequences.

On aggravating factors, the court found that the offence involved a grave risk of injury and that the worker's death was a direct manifestation of that risk. On mitigating factors, the court accepted that Brady Marine had no prior convictions (a matter the court regarded as significant given the inherently dangerous nature of the industry), had expressed unreserved remorse, accepted responsibility for causing the death, cooperated with the prosecutor, and was a good corporate citizen with strong community ties. The court also accepted that the defendant had taken significant remedial steps after the incident, pointing to good prospects of rehabilitation, though the court noted those steps did not significantly reduce the defendant's culpability.

The court assessed the appropriate base fine at $600,000 and applied a 25% discount for the early guilty plea, arriving at a final fine of $450,000.

Orders Made

  • Brady Marine & Civil Pty Ltd was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
  • A fine of $450,000 was imposed (reflecting a 25% reduction from the base fine of $600,000 for the early guilty plea)
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor
  • The defendant is to pay the prosecutor's costs as agreed or assessed

Key Takeaways

  • The District Court confirmed that the absence of an adequate risk assessment for storing unrestrained heavy steel structures on a barge constituted a failure to comply with the primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), exposing workers to a risk of death or serious injury.
  • A fatal outcome is treated as an aggravating factor at sentencing; the worker's death was characterised as a direct manifestation of the grave risk created by the defendant's failure.
  • An early guilty plea entered before a trial date was set attracted the full 25% sentencing discount available under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Reliance on experienced and qualified supervisors and operators does not, of itself, discharge an employer's obligation to ensure adequate risk assessments are conducted before potentially hazardous tasks are undertaken.
  • Post-incident remediation and cooperation with the regulator were accepted as indicators of rehabilitation and good corporate citizenship, but the court made clear those matters did not significantly reduce the defendant's culpability for the original failure.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Work Health and Safety Regulation 2011 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)

Cases
- Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v Commercial Industrial Group Pty Ltd [2006] VSCA 181
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700