SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited - [2020] NSWDC 597 - NSWDC 2020 case summary — Zoe

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SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited

[2020] NSWDC 597

District Court of NSW|2020-10-02

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-10-02

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145
(2011) 34 VR 1 Green v The Queen [2011] HCA 49

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145(2011) 34 VR 1 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92(2009) 186 IR 125 Jimmy v The Queen [2010] NSWCCA 60(2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242(1988) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263

Judgment (48 paragraphs)

[1]

[7]

Design of the pressurised piping system

Design activities on the NorthConnex Project were classified into two categories: Project Works and Temporary Works.
The Project Works were the physical works required to be designed, constructed and completed as the final deliverables of the NorthConnex Project, and consisted of the Project Company's Works and State Works as defined by the Design & Construct Deed.
Temporary Works were any temporary physical works required for carrying out the Joint Venture activities, but which did not form part of the Project Works. This included temporary infrastructure installed or erected to undertake the construction of the Project Works.
As part of the NorthConnex Project, Lendlease and Bouygues had a "Temporary Works Design - Procedure" (TWD procedure) in place that applied to all such works at the site.
The purpose of the TWD procedure was to ensure that all reasonable and practical steps were taken to achieve design, construction, use, maintenance and removal of Temporary Works which complied with all relevant Australian Standards, Codes of Practice, Regulations and contractual obligations.
The PPS at the site was temporary infrastructure installed to undertake construction of the Project Works and fell within the definition of Temporary Works for the purposes of the TWD procedure.
The TWD procedure set out how to initiate and develop Temporary Works designs, the process for obtaining design advice, and achieving approval to contract and implement Temporary Works.
The TWD procedure provided that a Safety in Design (SiD) process should be carried out for all Temporary Works designs, in accordance with the Joint Venture management procedures, Work Health and Safety laws and regulations, and deed requirements. Despite this, there was no SiD process applied to the design of the PPS.
Lendlease and Bouygues assessed the PPS as "low risk" because it was comprised of proprietary products and systems which were certified as compliant with applicable Australian Standards at the time of purchase. This was also consistent with industry practice for tunnelling projects in Australia. As a result, Lendlease and Bouygues did not independently assess or certify the design through a SiD process, as was required by their TWD procedure.

[22]

Lendlease's approach to safety

Mr Little deposed that work health and safety is a number one priority across the Lendlease business. At the Group level, the Lendlease Board, CEO of Lendlease and the Global Leadership Team are the relevant parties responsible for the strategic direction of safety. The Global Head of Safety reports to these parties every month (or more frequently when required). At a business level, each General Manager of Safety within each subsidiary oversees safety. Mr Little was in charge of this function at Lendlease. At the project level, each project was required to have a Health and Safety Management Plan in place that was consistent with Lendlease's policies, requirements, and strategies. Finally, the Lendlease Risk Management and Audit Committee reviews the effectiveness of the enterprise risk management system in identifying material risks and having appropriate processes in place.
Mr Little's affidavit annexed the "Lendlease Global Minimum Requirements" that have applied to all Lendlease operations globally, including on Joint Venture projects, since 2002.
Lendlease and Bouygues were jointly responsible for the works carried out in performance and completion of the NorthConnex Project in line with the Joint Venture they entered into via the Design and Construction Deed dated 31 January 2015.
Mr Little explained that the Joint Venture adopted the Lendlease Global Minimum Requirements described above as well as Critical Risk Rules that were site-specific rules identified as fundamental to the safety of all NorthConnex Project workers. Attention was drawn to these rules through daily toolbox talks and pre-start briefings. All workers were also required to undertake both a general project induction and an extensive site induction before commencing work on site, as well as receiving competency-based training and assessments periodically. All workers were also required to provide evidence of current licences and certifications at the site induction. Additionally, all tunnel workers attended a tunnel induction prior to entering tunnel areas which provided instructions on specific risks and controls for the tunnel environment.
Since the Project commenced, the WHS Management Plan was implemented and overseen by the NorthConnex Project Safety Director. Mr Little described the features covered by the plan including: 1. Identification and management of work health and safety risks and hazards via risk assessments and controls; 2. Recording and managing project risks in the Risk Register; 3. Implementing a SiD process; 4. Requiring the development of SWMSs for construction activities in the Risk Register or any activity categorised as a "high risk" activity; 5. Requiring the daily use of Job Hazard Analysis and/or Start Card tools to conduct daily informal task-based risk assessments by staff and supervisors; 6. Ensuring Permits to Work are issued for high-risk activities in accordance with the Permit to Work Procedure; 7. Requiring the conduct of daily inspections of all high-risk activities by Safety Coordinators assigned to the NorthConnex Project; 8. Applying a Temporary Works Design Procedure; 9. Having an audit system in place for the NorthConnex Project that provides for internal quarterly compliance audits, health surveillance, atmospheric and environmental monitoring, workplace inspections, ongoing site safety observations to identify and remedy hazards, hazard/incident reporting, risk assessment workshops, and review/verification of design & engineering methods.

[24]

Support provided to Mr Adams' family

On the morning of the incident, two staff members from Lendlease accompanied police officers to attend the Adams family home in Brisbane to provide information and support to Mr Adams' wife, Mrs Diane Adams, and their son, Mr Dallas Adams. They accompanied them both back to Sydney. The NorthConnex Project Construction Director, Mr Vince Newton, met Mrs Adams and Mr Dallas Adams at Sydney Airport and accompanied them to the hospital. Mr McCann (CEO of Lendlease Group), Mr Craig Laslett, (CEO of Lendlease Engineering) and Mr Philippe Bouquet (Bouygues Chairman), personally met with Mrs Adams and Mr Dallas Adams at the hospital to extend condolences. A site visit where the incident occurred was arranged and various members of the team on the NorthConnex Project spent time with Mr Adams' family in the days before and after the funeral.
The Joint Venture provided over $450,000 in financial support to Mr Adams' family in the six months following the incident. This included: 1. Flights, accommodation and travel expenses to enable Mr Adams' family to urgently travel to and remain in Sydney immediately after the incident; 2. Matching donations given by Lendlease and Bouygues employees and contract workers to a memorial fund; 3. Contributions to the funeral and a memorial; 4. Installing a permanent memorial bench at the Wilson Rd site; 5. Covering flights, accommodation and other travel expenses to enable interstate and overseas family members to attend the funeral; 6. Providing financial assistance to the family to enable post-funeral sacraments to occur and visits to extended family who were unable to attend the funeral; 7. Supporting Mr Dallas Adams financially to make up for the loss of earnings incurred due to his absence from work following his father's death.
Lendlease continues to offer support. Mr Dallas Adams has been engaged on multiple Lendlease projects nationally, sharing his "Why Safety Matters" story through over 150 presentations to workers.

[26]

Improvements made in response to the incident

The following improvement measures were taken by the Joint Venture: 1. A Project Recommencement Plan was introduced to ensure a safe, structured return to normal operations across the NorthConnex Project. This plan set out a number of steps to be taken before workers returned to the site. 2. Introduction of the following new principles for the NorthConnex Project: requiring that all pressurised piping systems be designed by a third-party temporary works designer; regular recorded maintenance and testing of the PPS; prohibiting the use of compressed air to facilitate pumping water within dewatering lines; requiring the tunnel pump system be automatically shut down when a flow balance tank on the surface becomes full; requiring that the gate valves between two flow balance tanks on the surface are electrically actuated; where there is only one flow balance tank on the surface, ensuring the inlet is open-ended or the gate valves are locked "open" to create a permanently open system; requiring that all pipework restraints and supports be included in the overall design package for a particular piece of work. 3. Developed an Inspection, Maintenance and Testing Record setting out the requirements and timing for the inspection, maintenance and testing of the mounting/bracing components of PPS; 4. Installed chain restraints along service pipes in the tunnel, along with additional bracing brackets at the outlets to the dewatering system; 5. Developed a "Desludging of the Flow Balance Tank" SWMS that specifically identifies "uncontrolled release of stored energy" and "failures of fixtures or fittings" as potential hazards; 6. Made amendments to a number of existing project documents including SWMSs and Standard Operating Procedures.
The following measures were taken specifically by Lendlease to improve its temporary works procedures and processes: 1. Introduction of a requirement to appoint a Temporary Works Co-ordinator across the Lendlease business and all Joint Venture projects; 2. Developing detailed risk classification guidelines and clear requirements for the safe management of Temporary Works; 3. Expanding SiD guidelines and defining roles and responsibilities for SiD for all projects; 4. Strengthening requirements for surveillance of Temporary Works; 5. Adding requirements for the dismantling and removal of Temporary Works across all projects; 6. Introduction of a requirement to engage an Independent Proof Engineer for Temporary Works that fall in the highest risk category.

[34]

Safety measures taken by Bouygues in response to the incident

Bouygues has learnt from the incident and implemented significant changes to its subsequent tunnelling projects including the WCX3A and Melbourne Metro. In his affidavit, Mr Green detailed the following steps taken following the incident: 1. Reviewed, reinforced and implemented improvements to Bouygues' existing temporary works procedures and training, including appointing a Temporary Works Engineer to project sites; 2. Incorporating a mandate that, irrespective of whether Bouygues is the nominated Principal Contractor or not, all Joint Venture projects have their Health and Safety Management Systems aligned to the Bouygues GSEs; 3. Updating the GSEs to incorporate all knowledge obtained from actual and potential incidents occurring over the past few years; 4. Creating clear requirements prohibiting the use of compressed air to facilitate pumping water within dewatering lines; 5. Implementing detailed guidelines on risk classification categories for Temporary Works; 6. Expanding guidelines on SiD; 7. Applying requirements for safe design, installation, modification and maintenance of Temporary Works and change management protocols; 8. Strengthening requirements for the surveillance of Temporary Works; 9. Adding a Temporary Works Permit and requirements for dismantling and removal of temporary work; 10. Requiring the engagement of an Independent Proof Engineer for the highest risk category Temporary Works packages.
In partnership with Lendlease, Bouygues has developed a comprehensive Temporary Works Technical Training Programme for staff working on tunnelling projects. The training aims to clearly define what constitutes Temporary Works, reinforce WHS Act obligations, provide knowledge on the SiD framework, define roles and responsibilities for Temporary Works management, cover what good practice for Temporary Works is, outline planning requirements for Temporary Works and build capacity and understanding within the industry.
Bouygues and Lendlease have also collaborated to create and apply detailed document guides to current tunnelling projects regarding design, risk assessment, fabrication and erection, selection of Temporary Works designers, Temporary Works interface and safety.

[39]

Objective seriousness of the offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "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 an event 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."
Further at [42] his Honour continued: "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 [event] 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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendants' level of culpability are based upon the following: 1. The risks associated with the potential exposure of workers to crush injuries due to the uncontrolled release of stored energy in the PPS was a foreseeable one. It was one that was known or identified, or reasonably able to be known or identified, by both defendants. There was relevant guidance material on hazards associated with pressurised piping available at the time of the incident. 2. There was a significant likelihood of the risk occurring as the PPS had not been the subject of a SiD process which would have enabled the identification of issues such as inadequate welding of the support brackets at the outlet end of the pipes. There was a risk that if the welding of the support brackets at the outlet end of the pipes was not adequate to withstand the pressure that might be placed on the pipework during its operation, there could be a system failure. 3. The possible consequences for the health and safety of workers arising from the uncontrolled release of stored energy in the PPS was death or serious injury. 4. There were several reasonably practicable measures that Lendlease and Bouygues could have implemented to eliminate or minimise the risk. This includes the following steps: 1. The engagement of appropriately qualified persons to undertake a SiD process for the design of the PPS to ensure that the system complied with the relevant standards; 2. The implementation of a pump system that could pump the required pressure of wastewater from the bottom of the shaft through the PPS without the use of compressed air; 3. Ensuring that the welds attaching the pipe clamps to the pipe support structure at the outlet end of the PPS were designed to withstand all static and dynamic forces that may be applied to the welds during operation; 4. The preparation of a Safe Work Method Statement for the task of desludging the flow balance tanks that adequately addressed the hazards associated with pressurised fluids or the risk of uncontrolled release of energy. 1. The above measures were suitable, available and able to be implemented by Lendlease and Bouygues before the incident occurred. There was no evidence that the cost of such measures was an unreasonable burden. If they had been implemented at the time of the incident, the risk would have been eliminated or minimised. 2. Mr Adams lost his life due to the catastrophic injuries he suffered. 3. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 4. Counsel for the prosecutor submitted that the objective seriousness was in the high range. Senior counsel for the defendants submitted that it was in the mid range. Senior counsel pointed to par 44 of the Agreed Statement of Facts (PX 1, Tab 3). It was an agreed fact that the defendants assessed the PPS as low risk. The system comprised proprietary products and systems which were certified as compliant with applicable Australian Standards. The defendants did not independently assess or certify the design through a SiD process, as was required by the TWP. Senior counsel submitted that because the pipework complied with accepted industry practice, and because there had been no previous problems of the kind experienced during the incident, it was understandable that the defendants had assessed the work as low risk. I accept this submission. 5. For these reasons I reject the submission made by counsel for the prosecutor, and I accept the submission made by senior counsel for the defendants, regarding where these offences fall in the range of objective seriousness. 6. Of course, defendants must be proactive in carrying out their obligations under the Act. This case demonstrates that it is not enough for a duty holder to act in accordance with the standard practice. It is the obligation of every employer to challenge such thinking to ascertain whether or not the obligations imposed by the Act are being satisfied.
I find that the level of culpability of Lendlease is in the mid range.
I find that the level of culpability of Bouygues is in the mid range.

[42]

Mitigating factors

Bouygues does not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
However, Lendlease has 13 previous convictions under ss 8(1), 8(2), 15(1) and 16(1) of the Occupational Health & Safety Act 1983 (NSW). On examination however, these offences were committed by companies which Lendlease later bought and took over. In effect Lendlease has "inherited" this criminal record. However since the Lendlease safety system has been the one applied to engineering projects, there have been no offences or convictions. I propose to treat Lendlease as a company with no previous convictions.
Lendlease and Bouygues are both otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which both offenders took after the incident demonstrate this.
Lendlease and Bouygues are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Lendlease and Bouygues have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. They have taken positive steps to guard against the risk of an incident such as this ever happening again. They have brought their documentation and their procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
Lendlease and Bouygues have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they have accepted responsibility for their actions and have acknowledged that the death of Mr Adams was caused by their actions.
Lendlease and Bouygues entered guilty pleas: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give a 25% discount to each offender for an early plea.
Lendlease and Bouygues gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. Lendlease and Bouygues co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

[45]

Victim Impact Statements

The defendants were convicted at the sentence hearing on 2 October 2020.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a). By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family. Members of a primary victim's immediate family include children and grandchildren of the deceased - s 26.
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community - s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.
Mr Dallas Adams, the son of Mr James William Adams, provided a written Victim Impact Statement (PX 2) which he read out in court. Mr Adams said that he has felt "sick and in shock" since the date of the incident. He explained that he has been left absolutely gutted, angry, disappointed and wanting to blame everyone who worked on the NorthConnex Project.
Before the tragic loss of his father, Mr Dallas Adams led an active lifestyle, busy with family and work commitments and competing in various sports. He described his father as an amazing father, grandfather and a loving husband who was only a few months away from retirement. Mr Dallas Adams said that his family has been struggling to come to terms with the accident and have been left with a tremendous void and sadness that they will never be able to overcome. He explained that the family will continue to experience grief and heartache with the knowledge that this incident should never have occurred.
In his statement, Mr Dallas Adams described the personal impact as brutal and said he finds it incredibly difficult to wake up every day. He cries himself to sleep and experiences nightmares on regular occasions. He experiences guilt for not accepting the loss of his father. He has required ongoing professional help to deal with grief, anxiety, depression, anger, post-traumatic stress disorder and suicidal thoughts. Mr Dallas Adams no longer engages in sporting activities and finds himself withdrawing from social settings. He struggles to be happy and feels that he cannot be there for his children in the way he used to be due to the impact of his own father's death.
In the immediate aftermath of the incident, Mr Dallas Adams left his job as an electrician to assist his mother with his father's body retrieval, funeral arrangements and correspondence with his father's employer and estate lawyers. He has not been able to return to work on a full-time basis because working in his trade reminds him of the industry that "killed my father". Since the incident, Mr Dallas Adams has been supporting his grieving mother financially as the loss of her husband resulted in a significant financial burden.
The court acknowledges the pain and suffering of the entire family of the late Mr James Adams and offers its own sympathies to everyone affected by his preventable and untimely death.

SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited

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Catchwords

Judgment (48 paragraphs)

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Cases Cited (26)