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District Court 29 April 2021

SafeWork NSW v S & T Services Pty Ltd

[2021] NSWDC 140

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v S & T Services Pty Ltd [2021] NSWDC 140
Court: District Court of New South Wales
Date: 29 April 2021
Judge: Russell SC DCJ

Background

S & T Services Pty Ltd was a structural engineering company specialising in builders' temporary works and cranes. It was engaged by Probuild Constructions (Aust) Pty Ltd as the principal contractor for a large residential development at Wolli Creek, New South Wales, to design a cantilevered steel support structure (known as a grillage) for a tower crane. The grillage, attached to the side of a building under construction, was intended to bear the full load of a free-standing Liebherr tower crane weighing more than 20 tonnes of steel alone.

On 6 August 2017, while the tower crane (TC-3) was being erected on the grillage, the structure gave way. The crane tower buckled and collapsed, injuring several workers. The site was located directly across the road from occupied residential apartment complexes, heightening the potential for catastrophic harm.

SafeWork NSW prosecuted S & T Services under the Work Health and Safety Act 2011 (NSW). The company pleaded guilty to failing to comply with its duty, as a designer of a structure intended for use as a workplace, to ensure the structure was designed to be without risks to the health and safety of persons, contrary to sections 22 and 32 of that Act.

  • Whether S & T Services breached its duty as a designer of a workplace structure under section 22 of the Work Health and Safety Act 2011 (NSW)
  • The objective seriousness of the offence and the appropriate penalty, including the weight to be given to the guilty plea and other mitigating or aggravating factors
  • The capacity of the defendant to pay any fine imposed
  • Whether prosecution costs should be ordered against the defendant

Decision

The court accepted that S & T Services failed to take reasonably practicable measures to eliminate or minimise the risk of death or serious injury arising from its defective structural design. The failures were detailed and technical: the company relied on hand calculations alone when computer modelling (finite element analysis) was also required; the hand calculations used the wrong failure mode (compression rather than tension); and the calculations assessed plate width at the widest point rather than the narrower, tapered section near the pin connections. The design of the connection joints was inadequate for the tensile forces that would apply once the crane was fully erected.

The court also found that the defendant's site inspection on 4 August 2017, conducted two days before the collapse, was an opportunity to identify and rectify these deficiencies. Instead, S & T Services issued letters on 1 and 5 August 2017 confirming the steelwork and design intent were adequate, effectively clearing the installation to proceed. Those letters were found to be a further failure of the defendant's duty.

In sentencing, the court weighed the objective seriousness of the offence, the risk of harm to multiple workers and to occupants of the nearby Arc Apartments, the injuries suffered by the workers (particularly the lasting and serious injuries sustained by one worker), and the general and specific deterrence considerations relevant to work health and safety prosecutions. The defendant's guilty plea attracted a 25% discount on the penalty. The appropriate fine before the plea discount was assessed at $300,000, resulting in a final fine of $225,000.

The Victim Impact Statement of one injured worker described permanent physical injuries including multiple fractures and ongoing ankle and back problems, an inability to participate in sport and family activities, financial strain, and significant psychological impact. The court took this statement into account in its sentencing.

Orders Made

  • S & T Services Pty Ltd convicted on 22 April 2021
  • Fine of $225,000 imposed (reduced by 25% from $300,000 to reflect the guilty plea)
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor
  • S & T Services Pty Ltd to pay the prosecutor's costs

Key Takeaways

  • A structural engineering company acting as designer of a workplace structure carries a positive duty under section 22 of the Work Health and Safety Act 2011 (NSW) to ensure the design is, so far as is reasonably practicable, without risks to health and safety, and that duty extends to the adequacy of connection elements and load calculations.
  • Reliance on hand calculations alone, without computer modelling, may constitute a failure to take reasonably practicable measures where the complexity of the design demands more rigorous analysis, particularly where foreseeable failure modes are not adequately captured by simpler methods.
  • A pre-incident inspection that fails to identify design deficiencies, followed by the issue of letters confirming structural adequacy, can itself form part of the particularised conduct underlying a WHS offence rather than serving as evidence of diligence.
  • The District Court confirmed that a guilty plea attracts a 25% discount on the appropriate penalty, consistent with established sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under section 122(2) of the Fines Act 1996 (NSW), the court has power to direct that a portion of the fine be paid to the prosecutor, and exercised that power here to direct that 50% be paid to SafeWork NSW.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 22, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases:
- Attorney General for New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Baumer v R (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) (1988) 164 CLR 465