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District Court 23 July 2021

SafeWork NSW v MGW Engineering Pty Ltd

[2021] NSWDC 337

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

Citation: SafeWork NSW v MGW Engineering Pty Ltd [2021] NSWDC 337
Court: District Court of New South Wales
Date: 23 July 2021
Judge: Strathdee DCJ

Background

The defendant, a small engineering and construction services contractor trading as Forefront Services, was engaged to install HDPE conduits and pipes at the WestConnex M4 East tunnel project in Sydney. On 1 February 2018, a worker employed by a separate contractor, Kenny Constructions, was seriously injured at Cross Passage 25 of the tunnel under construction.

The injury occurred when the worker attempted to remove a temporary spool pipe connected to a fire and deluge main riser. Unknown to him, the pipe remained under pressure following an overnight hydrostatic water pressure test conducted by the defendant's personnel the previous day. When the worker unbolted a coupling, pressurised water was released uncontrollably, striking him and causing multiple rib fractures, a laceration to his left lung, and lacerations to his liver and spleen. He recovered fully and returned to work within 18 working days.

SafeWork NSW prosecuted the defendant for failing to comply with its health and safety duty under the Work Health and Safety Act 2011 (NSW). Specifically, the charge alleged that the defendant failed to consult, cooperate, and coordinate with other duty holders at the worksite, exposing the injured worker to a risk of death or serious injury. The defendant pleaded guilty to the offence.

  • What was the appropriate level of objective seriousness of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)?
  • What weight should be given to aggravating and mitigating factors in determining the penalty?
  • What fine, after applying a discount for the early guilty plea and other mitigating factors, was appropriate?

Decision

The court found the offence fell in the low to mid range of objective seriousness. The defendant's own Safe Work Method Statement (SWMS) identified pressure testing as a high-risk construction work activity and required barricading during testing and isolation before any repair work. Despite this, once the overnight test was passed, no exclusion zone was maintained around the pressurised riser, no information tags were placed on it to indicate it remained under pressure, and the handover from the day supervisor to the night worker was not documented. The court noted that bollards and tape were erected within a couple of hours after the incident, demonstrating the remedial measures were straightforward and readily available.

A central failure was the defendant's breakdown in communication between its own personnel and other contractors working in the same area. Mr Komulainen of Kenny Constructions was told verbally that the hydrostatic test had been completed but was not told the pipe remained under pressure. That miscommunication was not recorded. As a result, Kenny Constructions' pre-start meeting proceeded on the basis that workers could continue with the concrete pour as planned, without any warning about the pressurised riser.

The court weighed several mitigating factors. The defendant pleaded guilty at an early stage, warranting a 25 percent discount for utilitarian value. The court also took into account the defendant's cooperation with SafeWork's investigation, its clean prior record (considered a significant mitigating factor given its lengthy operation in an inherently dangerous industry), demonstrated remorse and contrition through an affidavit from a director, good prospects of rehabilitation, and its standing as a good corporate citizen through regular charitable contributions. The relatively small size of the business at the time of the incident was also noted.

The court assessed the appropriate base fine at $150,000, reduced by 25 percent for the early plea, producing a final fine of $112,500.

Orders Made

  • The defendant was convicted of the offence.
  • The defendant was ordered to pay a fine of $112,500 (reflecting a 25% reduction from the base fine of $150,000 for the early guilty plea).
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor (SafeWork NSW).
  • The defendant was ordered to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • The District Court placed this WHS offence in the low to mid range of objective seriousness, reflecting that the risk of harm was real and the precautions were simple, but the incident arose from a communication failure rather than a systemic disregard for safety.
  • Under s 32 of the Work Health and Safety Act 2011 (NSW), a corporate defendant found guilty of a Category 2 offence faces a maximum fine of $1,500,000; the court may impose a considerably lesser penalty where mitigating factors are substantial.
  • A clean prior record carries significant weight in mitigation where the defendant has operated for a lengthy period in an inherently dangerous industry, even though the absence of prior convictions is ordinarily treated as a neutral factor.
  • Early cooperation with a regulator's investigation is a recognised mitigating factor under s 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the court applied it alongside remorse, good rehabilitation prospects, and the defendant's size and resources.
  • Failure to document internal handovers, to maintain exclusion zones around pressurised systems after testing, and to coordinate with other contractors about ongoing hazards were the concrete conduct failures underpinning the conviction.

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
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B

Cases
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling v The Queen (2012) 35 VR 399
- R v Cage [2006] NSWCCA 304
- R v MA [2004] NSWCCA 92
- R v Miria [2009] NSWCCA 68
- R v MMK [2006] NSWCCA 272
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Veen v R (No. 2) (1988) 164 CLR 465
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151