SafeWork NSW v Rockfield Contracting Pty Ltd

District Court of NSW|2021-06-09

Background

At trial the parties presented an Agreed Statement of Facts (PX 3). After reviewing the evidence, I made additional findings of fact which are set out in the primary judgment at [220], [221], [232] and [235]-[239]. I will not set out those findings again in full, but I incorporate them by reference into this judgment.

The Rockfield Team

Mr Lambe set out considerable detail in his affidavit on the close-knit culture of the workers engaged by Rockfield. It has always been common for Rockfield employees to socialise together both on site and off site. There were very close friendships formed and Mr Walsh was considered a valuable member of what the employees described as the "Rockfield family". Mr Lambe was a personal friend of Mr Walsh. They had both come from very similar backgrounds in Ireland. Mr Walsh was an honest and trustworthy worker who took his duties, training and safety very seriously.

Knowledge of the Risk

Mr Lambe explained that it was not until the prosecutor served its Brief of Evidence that he became aware of the cause of the incident. The information provided by Mr Charles Stockton in his report of 21 June 2019 (summarised in [190]-[198] of the primary judgment) was new to him. Mr Lambe stated: "I have always been aware that there can be tension in the drill string based on the angle it is drilled at and that there can be movement of the drill string as a result of that tension. However, I had never heard of, never seen or been made aware that there was any risk of the drill string breaking out of the ground and flicking metres prior to reading the expert report of 21 June 2019."
All the other people Mr Lambe has spoken to in the industry have also indicated a lack of knowledge of the possibility of such an incident.

Steps Taken after the Incident

After he became aware of the incident Mr Lambe asked Mr Luddy to contact Mr Walsh's flatmate to advise him of the incident and to obtain the contact details of Mr Walsh's family in Ireland. Mr Lambe subsequently had several conversations with Mr Walsh's brother Mr John Walsh, offering to assist both monetarily and logistically with arrangements to have Mr Walsh's body transported to Ireland.
Upon learning that the Kevin Bell Repatriation Trust ("the Trust") had been set up specifically for the purpose of repatriating the bodies of Irish persons who have died abroad due to misadventure or accidents, Mr Lambe also offered to do all he could do to assist the Trust in the future in memory of Mr Walsh.
Mr Lambe arranged a viewing at the funeral home in Sydney before Mr Walsh's body was transported to Ireland. This was attended by Rockfield employees and management, and Mr Walsh's friends and associates in Australia. Mr Lambe also arranged for a Requiem Mass to be held in Mr Walsh's memory at the church he had attended in Sydney. A memorial event was also held which resulted in the donation of approximately $65,000 to the Trust in Mr Walsh's memory.
Mr Lambe has since travelled to Ireland several times to visit Mr Walsh's brother and mother to pay his respects and to offer any assistance he could, including assisting the family in the process of making claims against Rockfield's insurer.

Apology and Remorse

Mr Lambe ended his affidavit with an apology: "I would like to apologise for Rockfield's breach of the Work Health and Safety Act. I am truly sorry that Rockfield was not aware of the risk identified by the expert evidence in this matter and that Rockfield did not have polices and systems in place which would have prevented this breach."

Affidavit of Noel Lynch

Mr Noel Lynch swore an affidavit on 29 May 2021. Mr Lynch commenced work with Rockfield in 1998 as a labourer. He has been contracted as the General Manager, Project Manager and Work Health Safety and Environmental Co-ordinator ("WHSE Co-ordinator") of Rockfield since 2002.

Training and Qualifications

Soon after commencing work with Rockfield, Mr Lynch became a HDD operator and drill tracker. He attended two live site orientation training days conducted by Vermeer NSW, the manufacturer of the HDD which Rockfield purchased. Mr Lynch said: "I was made aware during my initial…training…that the drilling process can induce tension or a force in the drill string especially if the drill is drilled at an angle and the drill string can move in an opposite direction to the angle of the drill string. However, I was taught, and it was my experience that if the drill string was contained in the ground any movement would be very limited."
Mr Lynch stated that there was no formal training available to the industry when Rockfield commenced horizontal directional drilling, nor was there any formal training available on how to operate a HDD machine until very recently. To his knowledge there is still no mandatory requirement that a HDD machine operator be licenced or have a formal accreditation.
In 2016 and 2017, Mr Lynch attained a Certificate IV in Work Health and Safety and a Diploma in Work Health and Safety to assist him in the performance of his WHSE Co-ordinator duties.

Horizontal Directional Drilling Safety Procedures

Mr Lynch prepared a Safe Work Method Statement ("SWMS") for each job unless there was a requirement to work under the principal's SWMS. If so, he would attend the relevant site to ensure that the Rockfield employees, including the job supervisor, the drill operator, the drill tracker and the other support workers were familiar with the requirements of the SWMS.
Mr Lynch made regular visits to the Rockfield work sites to ensure the work was undertaken professionally and in a safe manner consistent with established processes and the SWMS, to monitor the work progress and as a means of managing projects overall. Mr Lynch initially reviewed the Katoomba job and location and concluded that while the ground was rocky, the conditions for carrying out drilling did not require a different SWMS to be produced. Mr Lynch said that he was also informed and guided by the Visionstream WHS Plan.
Prior to the incident and the findings made by this court, Mr Lynch believed that a safe distance for any tracker or employee standing in proximity to a moving drill string was a distance of 1.5 metres. In his 22 years of working in the drilling industry, Mr Lynch had never witnessed, or heard from other workers at Rockfield or in the industry, that a drill string could move very far laterally or that it could move in an upward direction especially when there was downward pressure on it. Mr Lynch had never seen a drill string move or swing far enough to impact a worker standing at the side of an exit pit.
Mr Lynch noted that there is no mention or warning in the Vermeer Operators Manual about a drill string moving in a lateral direction when it is out of the ground or in circumstances when the head is drilled above ground.
Rockfield engaged Trenchless Advisors through its lawyers and sought an opinion from Mr Gunnel on Rockfield's HDD methods and practices. After considering the incident and Rockfield drilling practices, no recommendations were made to change Rockfield HDD safety practices.
Based on his experience and discussions with the Rockfield drillers and trackers, Visionstream and Mr Gunnel, Mr Lynch stated that "no one has ever directed or advised that a drill tracker should position himself anywhere other than on the side of the exit pit or at the side of the drill string to observe the drill string or head emerging from the exit pit".
Mr Lynch explained that the first time that he became aware that the tracker should stand behind the emerging drill string or head was when he read the expert report of Charles Stockton dated 21 June 2019.

Actions Taken following Delivery of the Primary Judgment

Following the primary judgment on 3 March 2021, Mr Lynch reviewed and amended the Rockfield SWMS to incorporate changes to reflect the findings made in the judgment. He said that he has since personally met with every Rockfield worker and explained to them the contents of the decision of the court, the changes that he made to the SWMS and the reason for the changes.
Rockfield also revised its HDD procedure in line with the opinion provided by Mr Stockton so that the drill tracker no longer stands to the side of the exit pit when the drill head is emerging into the exit pit and when it is being pushed through the exit pit. The tracker is now required to position himself behind the emerging drill string and the exit pit, in accordance with Mr Stockton's opinion and the court findings. Hard hats are also now mandatory at all Rockfield sites at all times.
Mr Lynch explained that he still has difficulty understanding why the information that Mr Stockton provided post-incident is not readily available and published. He pointed out that he is not aware of a single piece of literature which is available which would direct him, or persons in his position, to understand or become aware of the risk.
Mr Lynch reiterated that it was not common knowledge throughout the industry prior to this incident that there was a risk that the drill string could behave in the manner it did on the day of the incident. Mr Lynch believed that few, if any, workers would have known this.

Impact of the Incident upon Rockfield HDD workers

Mr Lynch said: "Matthew Lambe, I, and the rest of the Rockfield employees were devastated at Paul's death and Matthew arranged counselling for everyone and closed Rockfield operations for seven days as a mark of respect for Paul and to assist the Rockfield employees".

Rockfield's Safety Record

Rockfield has always operated in an industry which is potentially highly dangerous. Its operations involve the use of very heavy machinery, digging, trenching, working around power lines, working in underground services and working in confined spaces with water. Such work always carries significant risks. Despite this, in the 23 years in which Rockfield has been in operation, no workers compensation claims have ever been made by employees or contractors. There is no record of any Rockfield employee or contractor being involved in any serious injury or fatality other than the subject incident. The only other injuries suffered by workers prior to Mr Walsh's fatal injuries were sprains or cuts suffered by a small number of employees.

Consideration

I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

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" is used to describe the circumstances of the crime. The gravity of the offence is 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 v The Queen. 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. His Honour 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 offender's level of culpability are based upon the following: 1. The risk was foreseeable. The risk created by stored energy in a drill string placed under tension was well-known and well recognised both by the defendant and in the industry generally. There was no guidance material which identified the risk. 2. However the evidence establishes that the risk was not foreseen by the defendant, Mr Lambe, Mr Lynch or Mr Caulfield. The Visionstream SWMS did not recognise or deal with such a risk. The expert Mr Gunnel, who was retained by Rockfield after the incident, did not recommend any changes to the practices of Rockfield. The evidence established that no-one from the defendant and no-one in the HDD industry to whom the defendant has spoken was aware of such an event ever occurring in the past. 3. The likelihood of the risk occurring was low. The evidence established that it had never occurred during the defendant's operations over the past 23 years. Further, those spoken to in the industry at large had not heard of such an event occurring before. 4. The potential consequences of the risk included death or serious injury. 5. There were steps available to eliminate or minimise the risk, as identified in the primary judgment. 6. There was no real burden or inconvenience of implementing those steps, as identified in the primary judgment. 7. Mr Paul Walsh died as a result of being struck by the drill string which whipped towards him under tension when it broke out of the ground. 8. 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.
But for the first, second and third factors above, I would have found that the level of culpability of Rockfield was in the mid range. The risk was not known to or foreseen by the defendant and this was the view in the industry generally. Such an event had not occurred before, meaning that the likelihood of the risk occurring was very low. As a result I find that the level of culpability of Rockfield is in the low range.

Deterrence

The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
The penalty must reflect the need for specific deterrence. Rockfield is still conducting a business in a high risk industry. Its operations involve horizontal directional drilling using heavy machinery. Rockfield continues to engage workers for these projects.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mr Walsh died from the severe injuries he sustained when he was struck by the drill string.

Mitigating Factors

Rockfield has no record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. It has operated since 1998.
Rockfield is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. In its 23 years of operation it has been safety conscious and has had no serious injuries or workers compensation claims. The steps which Mr Lambe took after Mr Walsh died, including the support offered to the family of Mr Walsh, show that he and Rockfield are genuinely remorseful.
Rockfield is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Rockfield has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
Rockfield gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
No submission was made about capacity to pay so this issue does not arise.

Work Health and Safety Project Order

The prosecutor applied for an order under s 238 of the Act that Rockfield pay for the development and production of an animated education video by an external provider which covers the incident involving Mr Walsh, the failures of Rockfield as found by this court and the content of an appropriate safety system for horizontal directional drilling.
Counsel for the defendant did not oppose the order, providing that it did not cost more than $15,000. This to me seems a reasonable limitation, given figures which have been put to the court in previous cases. If Safework NSW wishes to spend more than $15,000 on a provider, it should fund the balance from the public purse.
The terms of the order were discussed in submissions, but left to the court to formulate. Given the evidence in this case that this was a rare event and that the risk was not one which was generally known across the drilling industry, I find that it is appropriate to make such an order. Such a video, if promulgated by SafeWork NSW would assist in achieving several of the aims of the Act, in particular those in s 3(1)(a) (protecting workers against harm) and s 3(1)(d) (promoting the provision of advice, education, education and training in relation to work health and safety).

Costs

There will be an order that Rockfield is to pay the prosecutor's costs.

Penalty

In fixing a penalty in this matter I will take into account the recent decision of the Court of Criminal Appeal in Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319. The case involved a prosecution under the Act and a death on a construction site. The objective seriousness of the offence was said to be in the high range. The defendant had several mitigating factors in its favour. The appeal was against the inadequacy of sentence. The trial judge had imposed a sentence of $100,000 which was discounted by 25% for an early plea of guilty. Both parties to the appeal conceded that the penalty was manifestly inadequate and the Court of Criminal Appeal proceeded to re-sentence the employer corporation.
In [19] of the judgment, the Court said: "The dominant factor in determining an appropriate level of penalty is the very high order of negligence that made this infringement such an objectively serious offence of its kind. There is no specific fault in her Honour's attention to the relevant sentencing factors, including the objective seriousness of the breach, but the level of penalty arrived at is, in this Court's view, manifestly inadequate by a factor of four. A starting point of $400,000 would be appropriate, discounted by 25% to $300,000."
Thus the "starting point" in a case which is in the high range of objective seriousness, where there was a death and where the defendant had mitigating factors in its favour, is a fine of $400,000. I have assessed the objective seriousness in this case as being in the low range, for reasons given above. In my view the appropriate fine is $250,000.
My orders are: 1. Rockfield Contracting Pty Ltd is convicted. 2. Order Rockfield Contracting Pty Ltd to pay a fine of $250,000. 3. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4. Order Rockfield Contracting Pty Ltd to pay the prosecutor's costs. 5. Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW): 1. Within six months of the date of these Orders, the defendant is to undertake and fund (to a limit of $15,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider ("the provider") that documents, illustrates and highlights: 1. the incident in which Paul Walsh was exposed to a risk of death or serious injury on 14 April 2016 ("the material date"); 2. the risks to which Paul Walsh was exposed on the material date; 3. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Paul Walsh was exposed on the material date as far as is reasonably practicable; 1. The management of the project and the provider will be undertaken by SafeWork NSW. 2. The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider. 3. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held jointly by SafeWork NSW and Rockfield Contracting Pty Ltd. 4. The video is to bear the logo of SafeWork NSW and the Waratah emblem of the State of New South Wales. 5. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service. 6. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2021

nium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 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 Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Safework NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35. Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) Rockfield Contracting Pty Ltd (Defendant) Representation: Counsel: M Cahill (Prosecutor) M Shume (Defendant)

Judgment

On 1 April 2016 at Station Street in Katoomba the defendant Rockfield Contracting Pty Limited ("Rockfield") was conducting the business or undertaking of horizontal directional drilling. Mr Paul Walsh was an employee of Rockfield and was tracking a drill head during drilling operations. During the course of the drill being manoeuvred out of an exit pit Mr Walsh suffered fatal injuries as a result of being struck by moving parts of the horizontal directional drill ("HDD").
On 3 March 2021, after a six day trial which was conducted by both counsel with admirable efficiency and attention to detail, I found Rockfield guilty of an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) ("the Act") it failed to comply with that duty and thereby exposed Mr Walsh to a risk of death or serious injury contrary to s 32 of the Act - Safework NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35 ("the primary judgment").
The maximum penalty for the offence is a fine of $1,500,000.

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Judgment (22 paragraphs)

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Cases Cited (19)