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District Court 29 November 2024

SafeWork NSW v Twin Connect Pty Ltd

[2024] NSWDC 568

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSON UNDERTAKING BUSINESS DUTY OF EMPLOYER RISK OF D EATH OR SERIOUS INJURY

Citation: SafeWork NSW v Twin Connect Pty Ltd [2024] NSWDC 568
Court: District Court of New South Wales
Date: 29 November 2024
Judge: Scotting DCJ

Background

Twin Connect Pty Ltd, an electrical and telecommunications infrastructure contractor, was engaged to carry out directional drilling and pipe installation works along a stretch of Wallgrove Road, Cecil Park. It subcontracted traffic management to Connect Traffic Management Pty Ltd (CTM), whose employee, Amanda Newton, was deployed as a traffic controller at the site on the night of 17 January 2022.

At around 8:50pm, the drill operator was reversing a 3.5-tonne Kubota excavator to backfill a trench. Ms Newton, who was standing with her back to the excavator, was struck and partially run over by the reversing machine. She did not hear any reversing warning signal. The operator initially believed he had run over a traffic cone, moved the plant forward and back, then discovered Ms Newton on the ground.

Ms Newton sustained an open distal tibia fibula fracture of her left leg and pelvic fractures, requiring two surgeries and ongoing physical and psychological rehabilitation. The prosecution by SafeWork NSW followed a site inspection the morning after the incident.

  • Whether Twin Connect Pty Ltd breached its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) by failing to ensure the health and safety of workers, thereby exposing Ms Newton to a risk of death or serious injury, contrary to s 32 of that Act.
  • What the appropriate sentence was, having regard to the objective seriousness of the offence, aggravating and mitigating factors, the guilty plea, and the offender's capacity to pay a fine.

Decision

Twin Connect pleaded guilty. The court proceeded to sentence on the basis of an Agreed Statement of Facts. The maximum penalty for the offence is a fine of 17,315 penalty units (equivalent to $1,782,579).

The court found numerous departures from the company's own documented safe systems of work on the night of the incident. These included the absence of physical barriers between the work area and live traffic, no established exclusion zone around the mobile plant, a spotter who was simultaneously performing other tasks rather than monitoring the excavator's movements at all times, only one traffic controller present when two were required, no two-way radios in use, and no external lighting at the incident location. Ms Newton had not been informed of the exclusion zone requirements and was unaware of the relevant Safe Work Method Statements (SWMS).

On the question of capacity to pay, the court acknowledged that the offender had no remaining funds in administration. Nonetheless, the court determined that an appropriate fine should still be imposed without reduction for incapacity, in order to give full effect to general deterrence and denunciation. The court confirmed the principle that capacity to pay is relevant but not decisive, and that a substantial fine may remain warranted by the seriousness of the offence.

The court assessed the appropriate fine at $240,000 before applying a 25% discount for the guilty plea, yielding a final fine of $180,000. The court accepted that Twin Connect's expression of remorse through its legal representative was genuine, and noted co-operation with the SafeWork investigation and the company's history as a good corporate citizen with community sponsorships and donations.

Orders Made

  • Twin Connect Pty Ltd convicted and fined $180,000 (reflecting a 25% guilty plea discount applied to a base fine of $240,000).
  • 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

  • The District Court confirmed that a company's capacity to pay a fine is a relevant consideration under s 6 of the Fines Act 1996, but is not decisive: even where an offender is in administration with no remaining funds, a substantial fine may still be imposed to serve general deterrence and denunciation.
  • Where an offender bears the evidentiary onus of establishing limited capacity to pay, failure to lead evidence in support of that submission will be taken into account by the court.
  • A 25% discount on penalty was applied to reflect the utilitarian value of the guilty plea, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1.
  • Multiple simultaneous failures against a company's own documented safe systems of work (including absent exclusion zones, a distracted spotter, inadequate lighting, and insufficient traffic controllers) were central to the objective seriousness of the offence.
  • Under s 19(1) and s 32 of the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking can be liable for exposure to risk of death or serious injury even where the injured worker's own conduct (here, mobile phone use) contributed to the incident, provided the underlying duty was not discharged.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)

Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412