Citation: SafeWork NSW v CPB Contractors Pty Limited [2021] NSWDC 376
Court: District Court of New South Wales
Date: 03 August 2021
Judge: Scotting DCJ
Background
CPB Contractors Pty Limited (formerly Leighton Contractors) was the Principal Contractor on the WestConnex M4 East Project, a major Sydney motorway tunnel construction involving two new three-lane tunnels between Homebush and Haberfield. The company formed a joint venture with John Holland Pty Ltd and Samsung C & T Corporation to deliver the design and construct contract, and engaged various subcontractors to carry out specialist tunnel works.
On 1 February 2018, a worker employed by subcontractor Kenny Constructions, Mr Kenneth Manning, was seriously injured at Cross Passage 25 (XP25) within the tunnel. Mr Manning was unbolting a clamp on what he believed to be a spool pipe connection. Unknown to him, the coupling sealed a fire and deluge main riser pipe that had undergone hydrostatic pressure testing the previous evening and remained under approximately 1,600 kPa of pressure. When the coupling was unbolted, pressurised water discharged violently, striking Mr Manning and causing multiple rib fractures, a lung laceration, a grade 2 liver laceration, and a probable splenic laceration.
SafeWork NSW prosecuted CPB Contractors under s 32 of the Work Health and Safety Act 2011 (WHS Act) for failing to comply with its primary health and safety duty under s 19(1), thereby exposing Mr Manning to a risk of death or serious injury. The offender pleaded guilty and appeared before the District Court for sentencing.
Legal Issues
- Whether the offender failed to comply with its primary duty of care under s 19(1) of the WHS Act, thereby exposing a worker to a risk of death or serious injury
- The objective seriousness of the offending conduct
- The applicable mitigating and aggravating factors, including the guilty plea, remorse, cooperation with investigators, prior convictions, and the offender's conduct as a corporate citizen
- The appropriate discount for the guilty plea, given it was entered after an initial not guilty plea and only upon the filing of an amended summons
- The appropriate financial penalty, having regard to the maximum fine of $1.5 million and the penalty imposed on a co-offender (Forefront)
Decision
The court convicted CPB Contractors of the s 32 WHS Act offence. The Work Pack prepared by the joint venture for the cross passage tunnel fit-out did not include any work method or sequence for the removal of pipes, and did not specifically identify pressure testing or hydrostatic pressure testing as an interface risk. The Safe Work Method Statement under which Kenny Constructions operated similarly failed to identify that interface risk. These omissions were central to the finding of liability.
On objective seriousness, the court assessed the offending as falling in the mid-range. The risk of serious injury or death was foreseeable and the measures required to address it were not onerous, but the court acknowledged the complexity of a large multi-contractor infrastructure project when calibrating the assessment.
The court identified several mitigating factors: genuine remorse, cooperation with the SafeWork investigation, the offender's record as a good corporate citizen (including charitable involvement and industry safety initiatives), and the guilty plea. The plea was entered only after an initial not guilty plea and following negotiations upon the filing of an amended summons, so the court assessed the utilitarian value as significant but not at the maximum level, applying a 15% discount rather than a higher figure. Prior convictions under the former legislation (the most recent from 2010, involving dissimilar offences) were noted but treated as neutral, with neither party contending they were aggravating or mitigating.
The court also had regard to the penalty of $112,500 imposed on Forefront (after a 25% plea discount) for its related but distinct offending on the same site, noting that strict parity did not apply given the different nature of each party's conduct. The court determined a base fine of $100,000, reduced by 15% to $85,000.
Orders Made
- CPB Contractors Pty Limited is convicted of the offence under s 32 of the Work Health and Safety Act 2011
- A fine of $85,000 is imposed (being $100,000 reduced by 15% for the guilty plea)
- The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor (SafeWork NSW)
Key Takeaways
- A principal contractor on a multi-party infrastructure project can be convicted under s 19(1) and s 32 of the WHS Act where work packs and safe work method statements fail to identify specific interface risks, even in a complex subcontracting environment.
- The District Court assessed the offending as mid-range in objective seriousness, reflecting that the risk was foreseeable and the preventive measures were not onerous, notwithstanding the scale and complexity of the project.
- A guilty plea entered only after an initial not guilty plea and subsequent negotiations attracted a 15% discount rather than the maximum available, reflecting reduced but still meaningful utilitarian value.
- Prior convictions under predecessor WHS legislation (the most recent over five years old and involving dissimilar conduct) were treated as neither aggravating nor mitigating where neither party pressed the point.
- Penalties imposed on co-offenders for related but factually distinct conduct on the same site are a relevant sentencing consideration, though strict parity does not automatically apply where the nature of each party's offending differs.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412