R v Brady Marine & Civil Pty Ltd

R v Brady Marine & Civil Pty Ltd - [2020] NSWDC 775 - NSWDC 2020 case summary — Zoe

[3]

BACKGROUND

In or about September 2015, McConnell Dowell Constructions ('McConnell Dowell') was contracted by Transport for NSW to construct a new ferry terminal for the Barangaroo development at Barangaroo, New South Wales ('the project'). McConnell Dowell conducted a business or undertaking which provided major infrastructure construction project services.
On 28 January 2016, McConnell Dowell contracted the defendant to provide marine services and the installation of piling works at the site. The defendant conducted a business or undertaking which involved the construction of wharves and jetties.
The project work was undertaken on a barge, the Maeve Anne, ('the barge') located at the Barangaroo Ferry Wharf, Barangaroo, New South Wales ('the worksite'). The barge had a 250 tonne Kobelco crane ('the crane') situated on the barge which was used to perform crane lifts. A supply barge was provided by McConnell Dowell to ferry items between the barge and a yard at White Bay.
The worksite was a workplace for the purposes of s 8 of the Act.
McConnell Dowell was the principal contractor at the worksite and employed Mr Robert Kreft, Project Safety Manager, and Mr Dennis Fitzgerald, Project Manager, who were responsible for project work at the worksite.
McConnell Dowell contracted Loughleigh Engineering Pty Limited ('Loughleigh') to provide a boilermaker/welder to undertake welding work at the worksite. Loughleigh employed Mr Daniel Hartigan and assigned him to perform welding works at the worksite, including on 1 March 2017.
The defendant employed the following workers who were working on the project at the worksite:

Mr Jason Munce as the Barge Supervisor (until 24 February 2017);
Mr Francois Labuschagne as the Senior Project Engineer; and
Mr Allan Woolley as the Crane Operator.

Mr Woolley held an open crane driving licence, an advanced riggers ticket, and forklift and elevated work platform tickets. As at 1 March 2017, Mr Woolley had over 45 years of experience in the operation of cranes. At the time of appointing Mr Woolley as Crane Operator for the project, the defendant was aware and understood that Mr Woolley was a qualified, experienced and expert crane operator. The defendant relied upon Mr Woolley's qualifications and experience in the operation of cranes.
The defendant engaged Constructive Workforce Pty Limited ('Constructive Workforce') to supply casual labour for the project. Constructive Workforce employed the following workers who were assigned to the defendant to work on the project at the worksite:

Mr Timothy Macpherson, who worked as a coxswain, dogman and punt master and who had 7 years' experience in marine construction works;
Mr Spencer McDonald, who worked as a leading hand and advanced rigger; and
Mr Adam McKay, who worked as an advanced rigger.

[4]

Work Leading up to the Incident

From about the end of October 2016 to 24 February 2017, Mr Munce was employed on the worksite by the defendant as the Barge and Piling Supervisor. Mr Munce was experienced and qualified in marine construction, marine works, the erection of jetty structures, barge mobilisation and demobilisation, barge movements and loading, pile extraction, pile-driving, and the removal of temporary works (such as temporary piles and headstocks). At the time of appointing Mr Munce, the defendant was aware and understood that Mr Munce was qualified and experienced, and relied upon Mr Munce's qualification and experience in the performance of barge and piling supervision duties. On 24 February 2017, Mr Munce was transferred to a new site.
By the end of February 2017, the defendant had commenced planning for and demobilising construction materials, plant and equipment from the site. The demobilising work included the removal and demobilisation of temporary piles and headstocks used in the construction of the temporary construction known as 'Arrestor 4'.
On 27 February 2017, Mr Labuschagne assumed the role of Barge Supervisor as well as Project Engineer. Mr Labuschagne was experienced and qualified in civil engineering, project engineering, civil supervision, construction management, and project management, including in the context of marine construction. At the time of Mr Labuschagne assuming the role of Barge Supervisor, the defendant was aware and understood that Mr Labuschagne was qualified and experienced and relied on his qualifications and experience in the performance of barge and piling supervision duties.
On 28 February 2017, the defendant removed two large headstocks from the temporary work at Arrestor 4 and placed them on the barge. The landward headstock consisted of two metal cylinders (or piles), that were approximately 610mm in diameter and 2 metres in length, welded approximately 6 metres apart to a metal platform that was approximately 10 metres long. The seaward headstock was of near identical construction though the metal cylinders were welded approximately 5 metres apart (collectively, 'the headstocks'). Welded to the top of each headstock were two locating guides. Each headstock weighed approximately three tonnes.
The headstocks were stored upright on the barge without any sort of restraint. There was no room on the barge for them to be stored lying down on their sides. There was no arrangement for a supply barge to collect the headstocks and take them from the barge to the yard at White Bay nearby, which was also used to perform work in relation to the project.
A formal, documented risk assessment was not undertaken by McConnell Dowell, nor the defendant, nor Constructive Workforce in relation to the storage of these headstocks on the barge or in relation to working on the headstocks whilst they were on the barge.
The defendant did not otherwise undertake an adequate risk assessment in relation to the storage of these headstocks, upright and unrestrained, on the barge.

[5]

THE INCIDENT

On the morning of 1 March 2017, workers from Loughleigh, the defendant, and Constructive Workforce signed on for the daily pre-start meeting, which was conducted by Mr Labuschagne. At that meeting, it was directed that the following tasks were to be completed that day: 1. Extract 4x temporary piles at A4; 2. Load/unload supply barge; 3. Cut headstocks from piles; 4. Pack and load vibrohammer to supply barge - demob via White Bay; 5. Weld extension to pile W245; and 6. General crane lifts to/from wharf.
The pre-start minutes were signed off by Mr Labuschagne in his supervisory capacity and forwarded to Mr Kreft who was offsite at the time.
Work proceeded in accordance with the task list from the pre-start meeting.
Later that day, prior to the subject incident, Mr Labuschagne decided that Mr Hartigan should oxy-cut the two locating guides which were welded on the top of each of the headstocks in order to remove the locating guides and in preparation for oxy-cutting the top beams of each headstock off the piles. Once detached, the loose locating guides would be removed from the tops of the headstocks using the barge crane.
Mr Hartigan discussed the methodology for removing the locating guides with Mr Labuschagne, Mr McDonald and Mr McKay.
The risk of the headstock falling if a sufficient horizontal force was applied to them by the crane was not identified.
Mr Hartigan then commenced the task. He obtained a ladder from the barge and leaned it against the headstocks in order to access and detach the locating guides. This took approximately one hour.
Once this was complete, Mr McDonald then directed Mr Macpherson to hook-up the locating guides to the barge crane so that they could be removed and added to the scrap.
At approximately 4:20pm, Mr Macpherson used the ladder which was rested against the headstocks to access the detached locating guides at the top of each headstock. Mr Macpherson was in contact with the crane operator, Mr Woolley, via two-way radio and hand signals as he did the task. Before performing the work, Mr Woolley thought that there was enough room on the barge to perform this specific task as he saw that the walkways were clear and accessible, that items on the barge were stacked very neatly and in an orderly fashion and because, by the late afternoon on 1 March 2017, the barge had largely been cleared of most of the unnecessary materials which had been transferred to the supply barge. In the operation of the crane, Mr Woolley sought to manage risks associated with the work, including by slewing the hook of the crane out to the left and away from contact with the headstock (as opposed to moving the hook up and over the headstock). Mr Woolley did not have any concerns over his ability to complete the lift safely.
At some stage during this process, the crane hook (by this stage with the partial load comprising at least two locating guides attached by lengths of chain) started to whip and criss-cross. The movement of the crane hook was due, in particular, to the wash from a passing ferry. As the crane hook moved, both the chains and the load came into contact with the landward headstock (located on the barge closest to the crane) causing that headstock to rock back and forth laterally. This headstock then toppled into the seaward headstock, which then fell on top of Mr Macpherson.
Mr Macpherson died on 1 March 2017 as a result of the injuries he sustained in the incident.

[6]

McConnell Dowell

As the principal contractor at the site, McConnell Dowell had overall responsibility for the site.
McConnell Dowell had developed and documented a 'Project Work Health and Safety Management Plan' (most recently revised prior to the incident on 25 April 2016) for the project.
Relevant aspects of this plan included:

A Project Induction Program requiring induction of all workers onto the site prior to the commencement of work.
Management of Subcontractors and Service Providers, including a requirement that subcontractors conduct 'daily pre-start meetings to convey changes' and 'daily checks to ensure compliance'. The daily pre-start meetings were used to list the day's activities ahead, and the minutes of which were signed-off by the relevant Brady Marine supervisory and forwarded to Mr Kreft each morning.
Toolbox meetings.
Risk Management, including the preparation, implementation, and review of all Safe Work Method Statements ('SWMS'). This also included a 'S.T.A.R.T Card System' (Stop Think Assess Review and Talk) to be used at the beginning of every shift and prior to starting a new task during a shift.
A Job Safety and Environmental Analysis ('JSEA') process to be conducted by McConnell Dowell for each discrete work activity.
A 'WHS Responsibility Matrix' which relevantly specified that the Project Safety Manager (Mr Kreft) shared responsibility for developing workplace risk assessments.
An instruction on the proper use of ladders, with reference to a Safe Work Instruction and Safe Operating Procedure, including the direction 'ladders must be placed on firm, level ground and secured, secured at the top …'.
A daily site visit by management personnel.

In the pre-start meeting minutes for the day prior to the incident, 28 February 2017, which were provided to Mr Kreft, it was noted that the headstocks were to be removed from Arrestor 4 that day. McConnell Dowell did not enquire as to where the headstocks were to be placed or stored after removal or what system of work was to be utilised.
In his statement to NSW Police, Mr Kreft stated that he could generally see all of the barge from his desk.
Therefore, the fact that the headstocks were stored on the barge from 28 February 2017 should have been known to McConnell Dowell prior to the incident. Despite this, McConnell Dowell did not act on this knowledge (or imputed knowledge) that the relevant SWMS did not address the storage of headstocks on the barge or that a risk assessment had not been undertaken (or arranged to be undertaken) after the headstocks were placed on the barge.
McConnell Dowell undertook weekly, rather than daily, inspections of the site.

[18]

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duty of the defendant requires that it ensures the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.
The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714].
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.
In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows: '[34] The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.' ….. '[42] The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.' ….. '[53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.' (my emphasis)
The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.
The relevant factors in determining the defendants' culpabilities are: 1. The defendant by its plea has admitted that;

there were headstocks stored on the deck of the barge from late in the afternoon on 28 February 2017 until the time of the incident, shortly after about 4.20pm on 1 March 2017
the headstocks were stored upright and without any form of restraint;
each of the headstocks weighed approximately 3 tonnes;
there was a risk to workers, in particular Mr McPherson, Mr Hartigan, Mr Mckay, Mr McDonald and Mr Labuschagne suffering serious injury or death as a result of being struck and/or crushed if the headstocks - or either of them fell over. 1. It is an agreed fact that the headstocks were unrestrained from the time they were loaded onto the deck of the barge and unhooked from the crane on the afternoon of 28 February 2017 until the time of the incident. 2. It is common ground that;
no specific SWMS or procedure was developed in relation to the storage of the headstocks on the barge upright and unrestrained. I do note however that there were some SWMS that the defendant had developed for the work in general, including SWMS-04 General Crane Works, which should have been followed but were not.
no SWMS or procedure was developed in relation to the cutting up/dismantling of the headstocks; and;
whilst there were prohibitions on workers entering exclusion zones, there was no prohibition on workers being in close proximity to the headstocks whilst they were stored upright, unrestrained on the deck of the barge. 1. The failure is the failure of management of the works being performed. R v Commercial Industrial Group Pty Ltd [2006] VSCA 181 at [20]. This encompasses the failure to recognise and to remedy an obvious risk which was brought into existence on 28 February 2017 2. The risk was an obvious one, the measures that ought to have been taken to eliminate, or if it was not possible to eliminate the risk to minimise it, were simple, straight forward and of little cost to the defendant. Had the headstocks been restrained, it is likely that the risk would have been eliminated or at least substantially minimised. 3. In the affidavit of Paul Brady (Exhibit 2) Mr Brady admits that the defendant failed to recognise the risk the headstocks posed upright and unrestrained on the barge, and relied on workers to undertake their own, independent risk assessment: '161. In the above paragraph [25] to (sic)… I have sought to explain the steps that Brady Marine took, prior to the Incident, in order to ensure the safety of its workers throughout its business, and while working on the Barge. Despite these steps, the system implemented by Brady Marine had an oversight in respect of the temporary storage of these unique headstocks on the Barge. In my opinion, the oversight was in Brady Marine's primary reliance on its barge workers to independently conduct an adequate risk assessment of the headstocks after the headstocks had been placed on the Barge. The oversight was also in Brady Marine's further reliance on Mr Woolley to independently identify the unrestrained headstocks as a risk before operating the crane. 162. In my opinion, the oversight existed because: a. Brady Marine did not, itself, separately identify for the benefit of those working on the Barge that the headstocks presented a risk, and should have been restrained while in an upright position; b. Brady Marine did not, itself, separately identify for the benefit of the crane operator that the headstocks presented a risk, and should have been restrained before the crane was operated - and failed to ensure that the crane was not operated until the headstocks were restrained; c. for the reasons I explain below, the probability of the headstocks falling without the application of an external force was low and not necessarily easy to foresee; d. before the crane was put into use, the headstocks stood in a vertical and unrestrained position for approximately 24 hours, including the evening of the 28 February 2017 where the 'no wash' speed restrictions were lifted when vessels were passing the Project site. This fact would have been a factor in my mind in assessing the likelihood that the headstocks may have fallen over by virtue of a passing vessel wash or a significant swell in the Barangaroo area; and e. other, simple but not identical, headstocks (as described in paragraph [42] above) were stored by McConnell Dowell at the Barangaroo worksite and/or at White Bay in an upright position and unrestrained fashion; and f. without in any way attempting to shift blame from Brady Marine to its employees, there were errors or gaps in the risk analysis that the employees performed.' 1. The defendant cannot escape culpability on the basis that its employees were not doing what they were supposed to do or that they failed to appropriately or adequately assess and control the risks posed by the headstocks on an independent individual basis. The duty cannot be delegated, and the obligation of the defendant was to effectively supervise the workers in performing their duties such that risks can be identified, and steps can be taken to eliminate or at least minimise the risks to workers. The reliance by the defendant on the use of trained, experienced and skilled workers taking an assessment of the area which did not identify this specific risk does not excuse the defendant's failure. The defendant's failure in this regard is significant. 2. The risk that the headstocks when upright and unrestrained on an unstable barge could topple and fall is not just foreseeable, it is glaringly obvious. 3. Significant guidance material was available to the defendant, as detailed above, at the time of the incident. 4. The risk of serious injury and death is clear in circumstances where two headstocks were stored upright and unrestrained on a floating barge which is at least to some extent, inherently unstable when there is no wash, and very unstable when there is significant wash. 5. The use of a crane in circumstances where the headstocks were stored vertically with no restraint is also inherently dangerous. Even more so given the potential instability of the barge, and the possibility of wash or wind causing the chain of the crane to whip or criss-cross, which in these circumstances, caused contact between the chain of the crane and the unrestrained headstocks.

The Court is obliged to make an assessment of where, on the scale of criminality, the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].
The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00 which reflects the legislature's view of the seriousness of the offence.
By its plea, the defendant has conceded that there were steps which, in all the circumstances of the incident, were reasonably practicable, and if taken, would have reduced the risk.
Objectively, the defendant's breach of its work health and safety duty was serious, and consequently its culpability is high: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35.

[19]

DETERRENCE

In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [200] NSWIRComm 71; (2000) 49 NSWLR 610: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons with large pieces of plant and material on an unstable barge is concerning.
Workers subjected to a risk of serious injury or death as a result of being crushed or struck by a large piece of falling plant is not unique to the circumstances of this defendant. The imposition of a component of the fine directed towards general deterrence, it is hoped, will highlight the need for other corporations and individuals for proper planning and development of procedures to eliminate, or at the very least severely minimise, the presentation of such a risk.
Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of machinery in an industrial context.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.'
In these circumstances, I find that the need for specific deterrence is significant given that the defendant remains active in the marine and civil construction industry.
The remedial steps taken by the defendant after the incident, as outlined in Exhibit 2, point to the unlikelihood of reoffending and the good prospects of rehabilitation of the defendant. However, this ought not to be assessed as significantly mitigating its culpability.

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