Citation: SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 3) [2021] NSWDC 105
Court: District Court of NSW
Date: 8 April 2021
Judge: Russell SC DCJ
Background
On 1 March 2017, a rigger named Timothy Macpherson was fatally injured on the Maeve Anne barge during construction of the Barangaroo Ferry Hub project in Sydney. Two large steel headstocks (structural beams used in marine piling works) were standing upright and unrestrained on the barge deck. They fell and crushed Mr Macpherson, who died from his injuries.
The principal contractor for the project was McConnell Dowell Constructors (Aust) Pty Limited, which had subcontracted marine services and piling installation to Brady Marine & Civil Pty Ltd. Following an 18-day trial, the District Court found McConnell Dowell guilty in November 2020 of failing to comply with its work health and safety duty under the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Macpherson and four other workers to a risk of death or serious injury.
This judgment deals with sentencing only. The findings of fact and law from the trial were recorded in the earlier judgment, SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668.
Legal Issues
- What is the appropriate fine for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW), where the maximum penalty is $1,500,000?
- How should the objective seriousness of the offence be assessed against the full range of conduct covered by the provision?
- What weight should be given to mitigating factors, including post-incident remediation, cooperation with authorities, and expressions of remorse?
- How should victim impact statements be taken into account in a corporate prosecution of this kind?
- What order, if any, should be made for prosecution costs?
Decision
Russell SC DCJ assessed the objective seriousness of the offence by reference to the specific failures identified at trial: no adequate risk assessment was carried out for landing the headstocks on the barge and working upon them; the deck was not cleared to allow the headstocks to be laid flat; and no visual inspection of the barge was conducted despite a contractual obligation to do so. These failures resulted in the death of one worker and the exposure of four others to serious risk.
The court weighed several mitigating factors in McConnell Dowell's favour. These included the company's cooperation with SafeWork NSW, NSW Police, and the State Coroner; its post-incident steps such as suspending construction, reviewing all safe work method statements, contributing $50,000 to a crowdfunding campaign for the Macpherson family, and developing a new safety programme in consultation with university experts. The company's pre-existing certified safety management system and its broader industry safety contributions were also considered.
The court received victim impact statements from Mr Macpherson's widow and father, which described the profound and lasting grief suffered by his family. Russell SC DCJ acknowledged that the family might regard any fine as inadequate, but noted that the court is bound by sentencing principles and the guidance of the Court of Criminal Appeal. The statements were taken into account in arriving at the penalty.
A fine of $500,000 was imposed, representing one-third of the maximum available penalty. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of that fine was directed to be paid to the prosecutor. McConnell Dowell was also ordered to pay the prosecutor's costs, an order it did not oppose.
Orders Made
- McConnell Dowell Constructors (Aust) Pty Limited convicted and ordered to pay a fine of $500,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- McConnell Dowell Constructors (Aust) Pty Limited ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court imposed a fine of $500,000 (one-third of the maximum) on a principal contractor convicted of a Category 2 WHS offence following the death of a worker caused by unrestrained steel headstocks falling on a barge.
- A conviction under s 32 of the Work Health and Safety Act 2011 (NSW) requires assessment of where the offending falls within the full range of conduct covered by the provision, consistent with the proportionality principle confirmed in Veen v The Queen (No. 2).
- Post-incident remediation, cooperation with multiple investigative bodies, and genuine expressions of remorse can operate as mitigating factors, but they do not displace the need for a penalty that reflects general and specific deterrence.
- Victim impact statements are a legitimate consideration in WHS sentencing, even where the offender is a corporation rather than an individual, though courts remain bound by statutory sentencing principles regardless of the family's expectations.
- Under s 122(2) of the Fines Act 1996 (NSW), the court has power to direct that a portion of any fine imposed in a WHS prosecution be paid directly to the prosecuting authority.
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, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668
- R v Brady Marine & Civil Pty Ltd [2020] NSWDC 775
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- 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 [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- R v Wilkinson (No. 5) [2009] NSWSC 432