SafeWork NSW v Saunders Civilbuild Pty Ltd

Relevant findings on the evidence

1. At trial, I made the following relevant findings of fact for the reasons given at [80]-[94] of the verdict judgment.
2. The verbal direction was given by the defendant to its employees and the defendant introduced the practice of pre-slinging loads at the same time.
3. The defendant did not systematically convey the verbal direction to the contract drivers or systematically consult with the contract drivers on that issue, prior to the incident. The verbal direction was not referred to in any of the SWMSs that could have applied to the work being performed on the day of the incident.
4. Mr Williams did not inform Mr Edwards of the verbal direction on 15 February 2018.
5. At trial, I found that the defendant had breached it work, health and safety duty by failing to have in place a safe work method in the form it adopted after the incident [176], failing to adequately train the workers on the safe work method [187] and failing to provide adequate supervision of the workers during the unloading operation at the site on the day of the incident [194].

Offender's case on sentence

1. The offender relied on an affidavit sworn by Mr Benson on 24 February 2022. Mr Benson was present in court for the sentence hearing and not required for cross-examination. The content of Mr Benson's affidavit can be summarised as follows. I will not repeat matters I have already referred to.

Relevant background

1. Mr Benson has over 27 years' experience in executive management roles in the engineering and construction industry. He has been a Director of Saunders International since August 2015 and the Managing Director since October 2015. He has been a director of the offender since February 2017. His role as one of two Directors of the offender involves overall responsibility for the business. Mr Benson holds Advanced Diplomas in Management and Project Management and has an electrical engineering background.
2. Saunders International purchased the assets of Civilbuild in March 2017 following the incorporation of a new entity, Saunders Civilbuild, in February 2017. Saunders Civilbuild is a 100% owned subsidiary of Saunders International. As at February 2022, the offender had approximately 80 employees and engaged approximately 20 contractors and subcontractors.

Safety record

1. The offender completes approximately 30 major projects per year. Projects that the offender has worked on include the WestConnex Tunnel, Sydney Metro Upgrades and the Ballina Bypass.
2. The present offence was the first time that the offender had been before the court for a safety offence. The offender's Safety Total Recordable Injury Frequency Rate has reduced year on year since its incorporation.

Cooperation with SafeWork NSW

1. The offender fully cooperated with SafeWork NSW throughout the investigation of the incident. It responded promptly to each of the notices issued by the Regulator in relation to the incident, and each notice was complied with.
2. Three employees of the offender, Mr Bromilow, Mr Williams and Mr Brown, participated in interviews with SafeWork NSW. These interviews were conducted during work hours and the offender remunerated the employees as if they had been on site. The offender accommodated the Inspectors' visit to the incident site and made its employees and a conference room available for the purposes of the investigation.

Approach to workplace safety

1. Mr Benson deposed that since his appointment as Managing Director of Saunders International, that company and its subsidiaries had placed a considerable emphasis on improving workplace safety. Mr Benson acknowledged that high safety standards are essential to running a successful construction business.
2. Mr Benson stated that following the asset purchase and incorporation of the offender, he took immediate actions to understand and enhance the safety systems that the offender had in place.
3. For example, in April 2017, workers completed a corporate induction and a health and safety meeting was arranged to identify particular areas of focus and improvement with regard to safety in the offender's business. Workers were also issued with new PPE.
4. Further, in May 2017, the following steps were taken: 1. Mr Stevenson, the Safety Manager at Saunders International, conducted a one-week intensive safety review across the offender's business. This resulted in feedback being obtained from the offender's crews and an action list being formulated for the offender to work towards improving the safety of company operations; 2. The offender rolled out access to an Employee Assistance Program; 3. The offender began publishing an internal newsletter focusing on safety. This newsletter was later replaced with a regular meeting; and 4. The offender published its strategic business plan, which emphasised the importance of workplace safety in the context of the offender achieving its corporate objectives.
5. In the months following, additional safety initiatives were also implemented, including: 1. JSEA Cards were introduced to improve on-job risk assessments; 2. An external consultant was engaged to provide staff with safety leadership training and enhance the offender's safety culture; 3. The offender conducted a National Safework Australia Month campaign to increase focus on safety improvements and enhance safety culture; and 4. The offender rolled out a 'Zero Harm' safety culture initiative.
6. In October 2017, the offender was nominated for a Hunter Safety Award for the manufacture and introduction of a 'spreader bar' tool to limit the safety risks associated with working at heights while loading planks.
7. Since the incident, the offender has continued to maintain a strong focus on WHS and has developed the following safety initiatives: 1. Assurance of controls has increased with more inspections, site visits and audits being undertaken by the Safety, Health, Environment and Quality team, the Executive Leadership team and members of the Board. This initiative is designed to highlight the commitment of leadership to workplace safety and ensure that safety systems remain central to the offender's thinking; 2. Ongoing third-party accreditation has been maintained under ISO 9001, a quality management system that assists the offender in meeting customer and stakeholder needs within legislative and regulatory requirements. The offender has also achieved accreditation under ISO 45001, a standard that specifies requirements for a WHS management system, a year earlier than required; 3. Saunders International is in the process of obtaining accreditation from the Federal Safety Commissioner. This requires building and construction companies to adhere to a range of operational and reporting practices to improve site safety; 4. Ongoing safety leadership training is being conducted through a program called "Leading Everyday". Mr Williams and Mr Brown have participated in this program; 5. An ongoing continuous improvement initiative called 'Raise the Bar' was introduced in July 2020 and has been rolled out and broadly promoted within the offender's business since its inception. This initiative is centred around a set of key principles, including safety principles, and over $300,000 has been invested in it to date; 6. The offender's Safety, Health, Environment and Quality management software (MyOsh) has been upgraded on multiple occasions; 7. The offender has made additional investment in safety staffing resources, with a new Safety Manager, multiple experienced Project Managers and a Safety Coordinator commencing employment in the business. A third party WHS Claims Manager has also been engaged; and 8. The offender is currently in the process of revising its Life Saving Rules to include "always use your personal ownership for safety to stop unsafe behaviour at work".

Corporate citizenship

1. The offender has donated and contributed to community and charitable organisations throughout its history, including by way of the following activities: 1. In late 2020, the offender participated in the delivery of 100 Food Bank food hampers. The offender provided the food and staff donated their time to pack the hampers for underprivileged children; 2. In 2020, staff participated in a Men's Health Suicide Prevention initiative. The offender continues to support this cause; and 3. In 2020 and 2021, staff participated in the MyMarathon Challenge, in which the broader Saunders International group raised a total of $4,777 for heart research in 2021.
2. Saunders International, on behalf of the broader corporate group including its subsidiaries, also participates in a number of charitable and community initiatives, including for example, in 2021: 1. It sponsored five tickets valued at $900 for Community Mental Health Awareness' 'Movie Extravaganza' event; 2. It donated $5,000 to the Westpac Rescue Helicopter Service; and 3. It sponsored the Liverpool West Rotary Children's 'Circus Extravaganza' event for 15 children, valued at $900. Saunders International has contributed over $3,000 to this initiative since 2016.
3. In 2019, Saunders International also helped the Sydney Children's Hospital raise $20,000.

Statement of regret

1. Mr Benson acknowledged that Mr Edwards' death was tragic and expressed regret in relation to the incident that led to his death. Mr Benson also recognised that Mr Edwards had a long history of working with the offender and its predecessor and had many close working relationships with employees of the business.
2. On the day of the incident, Mr Benson and Mr Bromilow made contact with Mr Edwards' wife and visited the hospital.
3. In the days following the incident and prior to Mr Edwards' death, Mr Bromilow stayed in regular contact with Mr Edwards' wife, offered the company's support and provided access to the company's Employee Assistance Program. Mr Benson and Mr Bromilow attended Mr Edwards' funeral on behalf of the offender. Mr Benson deposed that Mr Edwards' death has had a profound impact on him and on the offender's workforce. He expressed sympathy for Mr Edwards' family. The offender continues to offer ongoing support to its workers in relation to the incident. All of the offender's workers were offered counselling through the company's Employee Assistance Program.
4. Mr Benson stated that the incident and its lasting impact served as a constant reminder of why a staunch commitment to workplace safety is so important and why the offender must continue to stay vigilant and continually enhance its safety systems.

Consideration

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

Objective seriousness

1. The offence is one of significant objective gravity.
2. The risk of a worker falling from a load on a trailer was known to the defendant. It adopted the verbal direction and the practice of pre-slinging loads to eliminate or minimise the risk.
3. The risk was likely to result in harm if adequate precautions were not taken. This was a case where the defendant had taken some steps but did not go far enough to protect workers such as Mr Edwards.
4. The consequences of the risk included a risk of death and serious personal injury, but the risk posed to Mr Williams was far less significant when compared to the risk posed to Mr Edwards.
5. The available steps to eliminate and/or minimise the risk were well known in the industry and had been the subject of SafeWork educational material that was publicly available.
6. The steps that could have been taken to advise the contractors of the verbal direction and to ensure that they complied with it were relatively simple and could have been implemented with little inconvenience and expense. In particular, the defendant through its supervisor Mr Brown should have supervised the work in such a way as to prevent both Mr Edwards and Mr Williams from climbing on the trailer on the day of the incident. The steps taken after the incident demonstrate that the amendment of the safety documents and the training of the workers was undertaken with minimal inconvenience and at a proportionate cost.
7. I have taken into account that Mr Edwards was an experienced owner/operator of the truck from which he fell and it is likely that he had climbed onto the trailer and loads on many previous occasions. It is appropriate to recognise that the defendant had limited opportunity to influence the way in which Mr Edwards worked, notwithstanding my findings that it could have done so.
8. The death of Mr Edwards is an aggravating factor.
9. I have taken into account the maximum penalty for the offence.

Deterrence

1. 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 Ltd v Nash [2016] NSWCCA 37 at [180].
2. The penalty imposed must also provide for specific deterrence. The defendant continues to operate a business that poses significant risks to workers. The need for specific deterrence is reduced by reference to the offender's previous good record and its comprehensive response to the incident.

Aggravating factors

1. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the death of Mr Edwards is sufficient to establish the aggravating factor.

Mitigating factors

1. The defendant does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. The defendant has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The defendant had taken some steps prior to the incident to respond to the risk and it took more comprehensive steps after the incident. I am satisfied on the balance of probabilities that the defendant has demonstrated that it has good prospects of rehabilitation.
3. The defendant co-operated with the SafeWork investigation: s 21A(3(m) Crimes (Sentencing Procedure) Act 1999.
4. The defendant through its Director, Mr Benson, expressed some regret for the incident and sympathy for Mr Edwards' family. Whilst this does not satisfy the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, these matters can be taken into account in mitigation.
5. The defendant has demonstrated by its financial and other contributions to the community and to charitable works that it is a good corporate citizen.

Adverse Publicity Order

1. A court may make any of the other orders provided for by Division 2 of Part 13 of the Act, in addition to any other penalty imposed, if the court finds a person guilty or convicts the person of an offence: ss 234 and 235 of the Act.
2. The Court may make an adverse publicity order to publicise the offence, its consequences, the penalty imposed and any related matter: s 236 of the Act.
3. The prosecutor read an affidavit of Skye Buatava affirmed 4 April 2022 on this issue.
4. The prosecutor seeks an adverse publicity order to the effect that the offender be required to publish the notice in Annexure A to this judgment for a period of six months, in two industry publications, namely; the Master Builders Association Magazine and the Civil Contractors Federation Bulletin. Each of these publications is published quarterly and the prosecution seeks that the notice be published in two consecutive issues, at a cost of $3,800 per issue and $1,070 per issue respectively (total $9,740).
5. The MBA Magazine has a circulation of 8,000 and the CCF Bulletin has a circulation of 1,500.
6. The proposed adverse publicity order is sought to raise awareness in the building and construction industry of the risk of falling from height during the loading or unloading of plant and materials for use at building sites. Ms Buatava deposed that there have been 16 deaths nationally from falls from mobile plant in the period 2016-2020 and nine notifications of serious injuries from falling from trucks in 2020.
7. The defendant opposed the adverse publicity order on the basis that Ms Buatava's evidence was inadmissible and further that it generally did not support the making of the order. As to the first point, the rules of evidence do not apply in sentence proceedings: s 4 Evidence Act 1995. As to the question of weight, this is a matter for the Court to assess by reference to the evidence and the objects of the Act.
8. I am satisfied that the adverse publicity order is warranted in this case for the following reasons. First, the objects of the Act include protecting workers through the elimination or minimisation of risks arising from work from specified types of substances or plant and securing compliance with the Act through effective and appropriate compliance and enforcement measures. One way of promoting those objects is to publicise the existence of a risk in a particular activity, how risks can be eliminated and how the enforcement measures in the Act are applied to deal with a non-compliant PCBU.
9. Second, the purposes of sentencing include deterrence and denunciation of the conduct of the offender. General deterrence cannot be achieved without some publication of the sentencing outcomes for similar offences. The proposed adverse publicity order is specifically targeted at a class of persons who are in a position to commit similar offences. Further, the adverse publicity order will denounce the conduct of the offender. This is important in the ordinary way and also to indicate that in a strict liability offence even a comprehensive system needs to be reviewed to ensure that important safety measures are comprehensively implemented.
10. Third, the costs of the adverse publicity order are modest.
11. Finally, I have taken into consideration that the defendant tenders for a lot of major government projects, such as bridge building projects, that will require it to disclose the circumstances of this offence as a factor to be considered by the person issuing the tender. Whilst I accept that this type of disclosure is potentially detrimental to the defendant's business, it is fundamentally different to the disclosure involved with an adverse publicity order, which is intended to reach a wider audience for the deterrent and denunciative purposes of sentencing.

Penalty

1. Saunders Civilbuild Pty Ltd is convicted.
2. I have taken into account the Victim Impact Statement (VIS) of Tracey Edwards. Mr and Mrs Edwards enjoyed a long and happy relationship of almost 30 years. They spent as little time apart as possible and were very close. The VIS conveyed the enormous loss suffered by Mrs Edwards and the family. I have taken into account the impact of Mr Edwards' death on his family as harm done to the community.
3. I impose a fine of $375,000.
4. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. The defendant must publish the Notice set out in Annexure "A" by causing it to be published on or before 30 June 2022, or the first edition of the relevant publication after that date, in two consecutive editions of each of: 1. The Master Builders Association Magazine; and 2. The Civil Contractors Federation Bulletin.
6. The Notice must: 1. be of a size no less than a full page in the Magazine or at least 28 cm x 5 columns in size; 2. use a minimum type size of 12 point Times New Roman or equivalent; and 3. be in full colour.
7. The offender is to notify the prosecutor on or before 5pm on 30 June 2022 with evidence that the adverse publicity order has been complied with.
8. The defendant is to pay the prosecutor's costs of the proceedings.

APO (Saunders Civilbuild Pty Ltd) 08.03.22 (clean) (18200, docx)

Amendments 19 May 2022 - Inclusion of moiety paragraph. 09 June 2022 - Citation of verdict judgment on cover sheet and [2] of the judgment changed to read: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 (the verdict judgment). 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: 09 June 2022