Citation: SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
Court: District Court of New South Wales
Date: 31 August 2023
Judge: Russell SC DCJ
Background
Murray Constructions Pty Ltd, a civil construction company based in Deniliquin, was engaged to replace a bridge in regional New South Wales. As part of that project, workers transported an excavator sieve bucket (weighing 795 kg and heavier on one side due to its pin hitch) on top of a concrete bridge beam. The load was secured with chains, but during the unloading operation at the site on 28 September 2020, the tension on the remaining securing chain released prematurely.
The bucket fell approximately 2.4 metres from the trailer and fatally crushed Mr Brian Taylor, a 70-year-old truck driver and labourer, against an adjacent concrete beam on the ground. A second worker, Mr Brody Street, was struck on the hip and pushed off the beam. Mr Taylor died at the scene from extensive crush injuries to his chest and spine. Mr Street suffered soft tissue injuries and post-traumatic stress disorder, keeping him from work for approximately three months.
Murray pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW): as a person with a work health and safety duty under section 19, it failed to comply with that duty and thereby exposed workers to a risk of death or serious injury. The maximum penalty applicable was $1,766,130.
Legal Issues
- What objective seriousness attached to Murray's failure to ensure worker safety during unloading operations?
- Whether Murray failed to require that unstable loads be supported by or connected to plant (such as a crane) before load restraint devices were released.
- Whether Murray failed to prohibit unlicensed persons from performing dogging duties during unloading.
- What weight to give to mitigating factors, including an early guilty plea, in fixing the appropriate fine.
- How victim impact statements should be considered in the sentencing exercise.
- What costs order was appropriate.
Decision
The court found that Murray had failed in two specific and reasonably practicable respects: it did not require that unstable loads be supported by or connected to plant before restraint devices were released, and it did not prohibit unlicensed persons from performing dogging duties during unloading. These failures were causally connected to a worker's death and another worker's injury, placing the offending at a significant level of objective seriousness.
Russell SC DCJ took into account the Victim Impact Statements from Mr Taylor's family, which described profound and ongoing grief. His ex-wife, daughter, and sister each described the lasting devastation of his loss. The court stated that these statements were taken into account in fixing the penalty.
The court assessed the appropriate fine at $600,000. Reflecting Murray's early guilty plea, that figure was reduced by 25 percent, producing a final penalty of $450,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), the court ordered that 50 percent of the fine be paid to the prosecutor, SafeWork NSW. Murray was also ordered to pay the prosecutor's costs, a matter agreed between the parties.
Orders Made
- Murray Constructions Pty Ltd convicted (conviction entered 22 August 2023).
- Murray Constructions Pty Ltd ordered to pay a fine of $450,000 (reduced by 25% from a base of $600,000 to reflect the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Murray Constructions Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that an early guilty plea attracted a 25% reduction from the assessed fine, bringing a $600,000 penalty down to $450,000 in a case involving a fatality and a serious injury.
- Victim impact statements, while not determinative of a fine amount, formed part of the sentencing court's consideration under the applicable sentencing framework.
- Where an unstable load was not connected to a crane or other plant before restraint devices were released, that omission was treated as a reasonably practicable measure that Murray was obliged to implement.
- Prohibiting unlicensed workers from performing dogging duties during unloading was identified as a second distinct and practicable control measure whose absence contributed to the contravention.
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that half of the financial penalty be remitted to the prosecuting regulator, SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43
- Work Health and Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Schs 3 and 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Brzozowski v R [2023] NSWCCA 129
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432