SafeWork NSW v Saunders Civilbuild Pty Ltd

The Risk

1. The risk described in par 11 of the Amended Summons (PX 1, Tab 1) is as follows: "The risk was the risk to workers, in particular Mr Clarke and Mr Prowse, suffering serious injury or death, as a result of falling from height through a void that was insecurely covered during bridge construction."

Reasonably Practicable Measures

1. Paragraph 12 of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the WHS Act as follows: "The defendant failed to ensure, so far as is reasonably practicable the health and safety of workers, in particular Mr Clarke and Mr Prowse, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it was not reasonably practicable to eliminate) the risk: Prohibit construction work on the bridge until it was confirmed that the infill panels were securely fixed in place; Develop, implement and enforce a safe system of work for the installation of infill panels, that included: allowing for the varying distances of the gap between the girders and requiring infill panels to be of such length that allowed them to be securely fixed in place to the girders; and requiring each infill panel to be securely fixed in place to the girders; Document the system of work identified in paragraph 12(b) in a Safe Work Method Statement (SWMS) for Concrete Construction and train and instruct its workers in the SWMS.

Background

1. The parties presented an Agreed Statement of Facts (PX 1, Tab 2) and this material is summarised below.
2. Saunders was a corporation carrying out a business or undertaking which included the design and construction of bridges.
3. Gilgandra Shire Council contracted Saunders to undertake the design and construction of the Lucas Bridge over the Castlereagh River on the Breelong-Balladoran Road (Lucas Bridge Project), approximately 15 kilometres southeast of Gilgandra, NSW (the site).
4. The project involved demolishing the existing bridge followed by constructing a replacement bridge. The scope of the works included: 1. Site establishment. 2. Demolition of existing bridge. 3. Piling construction of abutments. 4. Installation of bearings and girders. 5. Construction of deck. 6. Installation of castellated kerbs. 7. Approach slabs. 8. Installation of service conduit.

The Workers

1. Mr Clarke was employed by Saunders as a formwork carpenter. At the time of the incident Mr Clarke had been employed by Saunders for approximately 12 years.
2. Mr Prowse was employed by Saunders as a site supervisor. At the time of the incident Mr Prowse had been employed by Saunders for 16 years. Mr Prowse was a trade-qualified carpenter and was experienced in all aspects of bridge construction, including installing infill panels.

The Incident

1. On 12 August 2021, Mr Clarke and Mr Prowse were working on the bridge deck at the site along with four workers from TEC Concreting Systems Pty Ltd, fixing steel in preparation for a concrete slab pour. Mr Clarke and Mr Prowse were carrying lengths of steel reinforcement along the bridge girders.
2. Before this, Mr Clarke and another Saunders employee, Mr Steve O'Brien, had placed steel infill panels in the void between the pair of parallel girders. Mr O'Brien laid the sheets and Mr Clarke followed him, screwing the sheets into the concrete girders. Mr Prowse oversaw the works.
3. There was a short period of rain during which workers ceased working and sought refuge beneath the bridge. Work resumed soon after the rain had stopped.
4. At approximately 9.45am, Mr Clarke and Mr Prowse were carrying lengths of steel reinforcement and were walking along the concrete girders. Mr Clarke lost his footing and placed his foot onto one of the steel infill panels. The steel infill panel dislodged, and Mr Clarke fell five metres through the void and into the riverbed below.
5. Mr Prowse and other workers went to Mr Clarke's aid. They found him lying on his back in 150-200mm of water, wedged into the sandy riverbed. Mr Prowse supported Mr Clarke's head so that it was out of the water until emergency services arrived.
6. Mr Clarke was transported by helicopter to Royal North Shore Hospital for treatment for his injuries and hypothermia.

Injuries

1. Mr Clarke was admitted to hospital complaining of neck pain. Subsequent investigations found that he had not suffered acute injuries. He was discharged on 14 August 2021.
2. However, Mr Clarke was treated for the following injuries arising out of the incident: cervical nerve root impingement, concussion with a small haematoma on the occiput, facet joint impingement, associated muscle spasm and a low back strain.

Steel Infill Panels

1. As part of the bridge construction, parallel precast concrete girders (or beams) were positioned along the length of the bridge deck.
2. The bridge had a span of 80 metres from abutment to abutment and had four sections, each with six bridge girders. Each girder was approximately 20 metres long.
3. The void between the concrete girders was filled by steel formwork, known as "infill panels".
4. The steel infill panels were manufactured by Australian Rollforming Pty Ltd (Australian Rollforming). The Australian Rollforming brochure (PX 1, Tab 7) set out product details and information on the infill panels with the following instructions: "The installation of Australian Rollforming void panels is comparatively quick and easy - they are simply glued (liquid nails, sealant) into the recess in the concrete beam, and this is made even easier and safer since this can be done while the beam is still in the mould and the scaffolding in place."
5. For the Lucas Bridge Project, the infill panels were pre-cut to a standard size of 850mm to suit the design of the bridge. The purpose of the panels is to block off the void in between concrete beams when the concrete road slab is poured.
6. The girders in place at the Lucas Bridge Project were not uniformly parallel, as some of the girders were bowed in places.
7. The bridge girders were installed at the site in accordance with Saunders' design requirements and its Safe Work Method Statement (SWMS). The installation was within design tolerance, which typically makes allowance for the girders bowing.
8. However, the effect of the bowing of some of the girders was that the pre-cut steel infill panels were not long enough to be adequately attached to both girders. The area where the overlap was insufficient was only able to be identified on site, once the girders were placed parallel by crane into the bridge structure.
9. The Australian Rollforming brochure stated that its panels are "pre-cut to exact void width". The correct void width is the void span plus the length of the concrete rebates (bearing support) on each of the beams spanned by the infill panel.
10. Mr Prowse raised concerns that some of the girders were bowed with the general manager, Mr Jonathon Bromilow, two to three weeks before the girders were placed.
11. Once the girders were placed in position on site, Mr Prowse told Mr Bob Luck, the project manager, that bigger sheets were required.
12. Mr Luck instructed the workers to take extra infill panels from the yard and to screw the infill panels together so that they would span the void. This was not done, as Mr Clarke thought that this method had failed in the past. Neither Mr Prowse nor Mr Clarke informed Mr Luck that the workers did not intend to follow the method.
13. Mr Luck did not visit the site often because the Lucas Bridge Project was impacted by COVID-19 and the associated travel restrictions and lockdowns. Mr Luck had concerns about COVID-19 and his health, so he wanted to limit his travel. During the COVID-19 lockdowns Mr Luck did not visit the site, but he was regularly communicating with the site. Mr Luck spoke to the site supervisor, Mr Prowse, every day on the phone and was available to be contacted at any time if an issue arose. Mr Clarke stated that Mr Luck visited the site three to four times after the Lucas Bridge Project started.
14. Mr Luck specifically asked Mr Prowse how the infill panels were fitting between the planks and he was informed each time that the infill panels fitted perfectly.
15. The longer steel infill panels were never made available and only the 850mm panels were used for the Lucas Bridge Project. The system of work was to secure the infill panels by drilling a 6mm hole through two overlapped sheets, into the concrete, placing a tie wire in the hole, and using a 75mm Tek screw to hold the panels down. This method was used for every second to fourth sheet, or every two metres. Its purpose was to hold the infill panels down and to prevent the panels from being displaced by movement, including any high winds.
16. In almost all areas, the infill panels were sitting firmly against the vertical face of the rebate area and between each bridge girder. However, in the area where Mr Clarke fell, the gap between the bridge girders was greater than 760mm and in the range of approximately 800-810mm. The infill panels covered the full void span between the bridge girders but did not sufficiently overlap the concrete rebate on either side. In this area, workers were unable to secure the panels to the girders using the method described above, as the gap was too big for the infill panel. After the panels were laid, Mr Prowse spoke to Mr Clarke and Mr O'Brien about the adequacy of the void coverage. The workers told Mr Prowse that they were happy with the coverage.

Safety, Health, Environment and Quality Management Plan

1. At the time of the incident, Saunders had in place a Safety, Health, Environment and Quality Management Plan (SHEQMP) (PX 1, Tab 8). This SHEQMP had been amended from previous workplaces to suit the project. Its purpose was to "describe how Saunders will manage and control the work to ensure that all Safety, Health, Environmental and Quality objectives for the Works specified" [sic]. Before the incident, the document had been reviewed and approved four times, with the most recent revision occurring on 28 January 2021.
2. In the SHEQMP at par 2.7 was the requirement for Saunders site personnel to conduct several task level planning activities to ensure that health and safety is considered throughout all aspects of the job, including: "● Daily pre-start meetings - All work groups will meet at the commencement of the shift to discuss work activities for the coming day, hazards or risks identified, any developments since the last shift and hazard reports/incidents from the previous shift/day. ● Weekly Toolbox meeting - Highlight Safety Topic of the week, discuss significant project matters, issues or impacts, share corporate announcements, communicate safety alerts and consult with workers on matters related to project and project management ● SWMS - To identify potential hazards and barriers and ensure that work instructions and procedures are understood by those undertaking the task (SG-HSW-SP-3400 Risk Management - Operations). ● Work Permit Procedure - Used to plan, coordinate, authorise and control work that is considered hazardous or non-routine. This typically includes (but may not be limited to) hot works outside a controlled environment, work at height (above 2 meters), or surface penetration/excavation. Saunders will control all work permits within PC scope area."
3. Paragraph 3 of the SHEQMP identified members of the Project Management Team as follows: 1. General Manager - Jonathon Bromilow. 2. Project Manager - Bob Luck. 3. Site Supervisor - Steve Brown.
4. Mr Prowse replaced Mr Brown as the site supervisor once the piling works were completed.
5. The project manager had several responsibilities, relevantly including: "Communication - Communicate and frequently reinforce QSE expectations to the project team and contractors through regular site visits, inspections and SAOs. Ensure that the requirements of the SHEQ are communicated to all personnel, subcontractors and, where appropriate, visitors to the site. Ensure that regular meetings between the Project Team occur. Ensure that information pertaining to the project is distributed amongst the workforce. Direct communication with and reporting to Client representatives on project matters. Systems of Work - Ensure that systems of work are documents and implemented in accordance with statutory obligations and the IMS. Ensure that subcontractors perform all work in accordance with statutory obligations and the IMS. Liaise with the Safety, Environment & Quality Manager on any unique activities that may require special operating standards or supervision. Complete IMS Quality review as per IMS requirements."
6. The site supervisor reported to the project manager and had several responsibilities, relevantly including: "General - Ensure the requirements of relevant legislations and codes of practice are implemented throughout the project site when directed by the Project Manager. Ensure all work is completed to Contract Requirements, ensuring that work is signed off. Ensure all Saunders workers are inducted using the Project Induction presentation and assessment in accordance with SG-IMS-SP-7200 Training and Competency. Ensure all visitors onsite are inducted and registered and are accompanied at all times while on site. Introduce new Saunders workers to project work standards before they commence work. Provide clear job instruction and methods to personnel for all tasks performed. Ensure that tasks are performed according to the stipulated procedures, and other process documents. Ensure that ITP inspection and hold points are observed and managed, with appropriate sign off by authorised representatives. Ensure that non-conformances are reported and rectified promptly. Continually observe the process of work for substandard practices/methods and continually reinforcing the required standard of practice to Saunders workers. Communication - Ensure that the requirements of the SHEQ Plan are communicated to all personnel, subcontractors and, where appropriate, visitors to site. Ensure that any bulletin or information pertaining to the project are distributed amongst the workforce and included in toolbox meetings. Advise personnel of required standards of work, or new or amended work practices that are introduced, and the hazards associated with specific types of work. Facilitate Daily Pre-Start meetings. Zero Harm (Safety & Environment) - Ensure Zero Harm (safety and environment management) for the project complies with the requirements as outlined. Support and undertake SAOs - actively encourage workers to participate through support, review and feedback processes."
7. Paragraph 4.1 of the SHEQMP stated that "hazard identification had been undertaken in several ways to support the planning and preparation for this project", including: "(a) SWMS prepared/reviewed by onsite workers provide opportunity for inclusion of previously, missed site hazards. (b) Schedule workplace inspections and SAOs consider issues with the changing physical work environment or behaviours and attitudes. (c) Daily pre-start meetings provide an opportunity to understand what is happening across the site, potential interactions and 'conflicts' between planned activities by various parties and a means of considering and addressing issues arising from simultaneous operations."
8. Paragraph 5.8 of the SHEQMP dealt with the resolution of work health and safety (WHS) issues and relevantly provided that: "Where a safety issue is raised with a management representative and is not resolved in a timely manner, the matter shall be managed and resolved in accordance with procedure SG-HSE-SP-3232 HSE Issues and dispute resolution. The safety issue or dispute shall be brought to the attention of the respective site supervisor and/or project manager and a record of the issue or dispute shall be recorded, with the date and time of it being reported. A commitment shall be agreed as to the appropriate time for response and action. In the event that such response/action is not provided in accordance with agreement, the issue shall be referred to the next level of management for intervention. This shall be recorded with agreed timeframe for response. This process shall be repeated until the matter is resolved or has been referred to the CEO with no timely response. At this point, the matter may be referred to the relevant state or territory OH&S authority for their intervention and action."

Safe Work Method Statements

1. Saunders had a number of SWMSs pertaining to the Lucas Bridge Project.
2. The risk of falls from a height of more than two metres associated with the Lucas Bridge Project was known to Saunders.
3. Relevant SWMSs included: 1. SWMS 01 - Site Establishment dated 2 December 2020 (PX 1, Tab 9). This identified the risk of falling more than two metres as specific high risk construction work. 2. SWMS 03 - Concrete Construction dated 2 December 2020 (PX 1, Tab 10). This also identified the risk of falling more than two metres and stipulated safety controls in relation to setting up formwork to address the hazards of working at heights. This SWMS also addressed the hazard of temporary support structures failing, requiring that where a worker is within three metres of a height that is greater than two metres and where no physical barrier is present, the worker is to wear a harness with a lanyard connected to a secure fixing and to have their movement restricted to ensure fall protection.
4. Whilst the procedure of "set up formwork" was identified, there was no mention of safety control measures regarding the placement and security of void panels. Mr Clarke and Mr Prowse had signed each of these SWMSs.
5. During the Lucas Bridge Project, Saunders used the services of different workers due to the varying types of work and various expertise required. All workers, including contractors, who attended the site were required to attend a site induction as part of the sign-on process. As part of the site induction, workers signed relevant SWMSs.
6. Daily Toolbox meetings were conducted every morning by the site supervisors prior to work commencing.
7. Relevantly, the Toolbox Meeting Record dated on the day of the incident identified "working at heights" under the heading "Hazard Identification". The control measure was for workers to "walk on concrete planks".

Systems of Work Following the Incident

1. Following the incident, longer steel infill panels were made available for the Lucas Bridge Project.
2. Saunders developed various documented procedures, including a Temporary Works Procedure dated 25 August 2021 (PX 1, Tab 11) which consolidated processes and requirements for the design, installation, inspection and use of temporary works in bridge construction. These included the use of metal sheet infills.
3. SWMS 03 - Concrete Construction was updated on 10 September 2021 (PX 1, Tab 12) to specifically include "installation of void panels" as a procedure, with "falls from height" and "failure of temporary works" identified as possible hazards. Relevantly, the safety control stipulated the following: "When installing the void panels, measure the gap between planks and ensure the supplied sheets are adequate in length in accordance with temporary works drawing (STW D01 Void Panel), and project design drawings. All void panels are to have minimum bearing cover of 80mm. This equates to achieving 50mm of one side of the girder rebate, and minimum 30mm on the opposing side to prevent any chance of void panel falling through the gap in planks. If this bearing dimension cannot be achieved, timber seating extensions are to be installed as per temporary works drawing (STW D01 Void Panel). Longer sheets can also be utilised and installed if available. If void panels need to be cut to fit, ensure cutting is done on ground level and or work bench to prevent any damage to fall restraint system. … All void panels must overlap by a minimum of 1 riser at each end of the sheet. Secure ALL void panels to bridge girders using 'GLUE & SCREW METHOD'. Install using 'Silicone' and or 'No more nails' to eliminate sheet movement and minimise concrete seeping. Secure each sheet using concrete screw fixings, minimum 2 per sheet (one each side). General capacity of void panels for point load is 150kg. ALWAYS walk on concrete bridge girders when on bridge deck and NOT void panels. Regularly inspect all void panels on completion of install to ensure no movement and or damage to void panels has occurred. Replace any damaged void panels, or repair and secure if required."

Evidence for the Defendant

1. Mr Mark Benson swore an affidavit on 13 June 2024 (DX 1). Mr Benson is the managing director of Saunders and has "overall responsibility" for the business.
2. Mr Benson has been the managing director of Saunders since 16 February 2017. He is also a director of Saunders' parent company, Saunders International Limited (Saunders International). The general manager of Saunders reports to the chief operating officer, who reports directly to Mr Benson.
3. Mr Benson has over 33 years of experience in executive management in the engineering and construction industry. Mr Benson has an electrical engineering background and holds an Advanced Diploma in Management and an Advanced Diploma in Project Management. Before his role at Saunders, Mr Benson was the general manager of a company that undertook construction and maintenance of power stations. He has also held senior positions on several major energy utility alliances.
4. Mr Benson exhibited to his affidavit a collection of documents marked "MB1" (DX 2).

Statement of Remorse

1. Mr Benson stated that Saunders is remorseful that it breached its duty under s 19 of the WHS Act. Saunders acknowledges that its failure to comply with its duty exposed workers to a risk of serious injury or death and that Mr Clarke suffered serious injuries.
2. In the months following the incident, Saunders' safety coordinator, Mr Matt Brough, arranged doctors and specialist appointments for Mr Clarke and drove him to appointments as requested. Saunders also provided food hampers and grocery deliveries to Mr Clarke's home during his rehabilitation to help his wife and children. Mr Benson said that Saunders had ongoing communication with Mr Clarke and his family and continued offering support. Mr Clarke was also given access to and encouraged to use the Employee Assistance Program (EAP).
3. Following the incident, Mr Clarke returned to work for Saunders. However, he subsequently resigned. Following his resignation, many people, including Saunders' general manager, would check in to see how Mr Clarke was.
4. Mr Prowse remains employed by Saunders as a site supervisor, with Mr Benson describing him as a "valued employee". Since the incident, Mr Prowse participated in site safety leadership training called "Safety Interaction for Leaders", as part of a broader "Together for Safety" programme. Mr Prowse's training record and attendance sheet, dated 9 February 2024, is annexed to Mr Benson's affidavit (MB1, Tab 1). Since the incident all of Saunders' supervisors and project management staff have been provided with this training.

About Saunders

1. Mr Benson gave a history and overview of Saunders. He said that Saunders was incorporated on 16 February 2017 following the asset purchase of Civilbuild. Saunders is a wholly owned subsidiary of Saunders International.
2. Saunders' head office is in Charlestown, NSW. Saunders undertakes bridge construction and other civil projects for private and public sector projects. At the time of the incident, Saunders also manufactured pre-cast, pre-stressed concrete elements for construction projects. Saunders sold the "pre-cast arm" of the business on 30 April 2024.
3. At the time of the incident, Saunders employed approximately 80 employees and engaged approximately 20 contractors and sub-contractors. These numbers reduced following the sale of the pre-cast arm of the business. Presently, Saunders employs approximately 30 workers, comprising of 10 office-based workers and 20 field workers.
4. Saunders currently has eight projects on foot at various stages of completion.
5. Saunders is a member of various industry associations, including the Civil Contractors Federation, Engineers Australia, and the Safety Institute of Australia. These associations provide access to, and the ability to share industry specific information, including information about WHS incidents.

Approach to WHS

1. A copy of Saunders' current Health, Safety and Environment Policy dated 13 November 2023 is annexed to Mr Benson's affidavit (DX 2, Tab 3).
2. Mr Benson explained that following the purchase of Civilbuild in 2017, steps were taken to develop the WHS systems and to identify areas for improvement. The workers from Civilbuild completed corporate inductions into Saunders' WHS systems and WHS meetings were convened to identify areas of improvement for the new operations. In consultation with workers, Saunders undertook a review of all existing policies and work procedures before issuing and implementing revised documents. Saunders also made the EAP accessible to all employees.
3. Mr Benson said that from around May 2017 Saunders' business leaders have met regularly, approximately twice a month, to discuss Saunders' business, operations, and projects. The first item on each meeting's agenda is safety and closing off identified actions.
4. In May 2020, Saunders implemented an ongoing continuous improvement initiative, focussing on improving safety, quality, productivity, and the culture of the business. This included developing a "strategy development" called "Raise the Bar" with an external consultant. Mr Benson said that to date, over $300,000 has been invested into this initiative which included face-to-face training for business leaders and facilitating workshops where hazards and work procedures were reviewed for improvement.
5. Saunders has implemented a set of "Life Saving Rules" which are referred to during site inductions and are visually displayed at all sites. The Life Saving Rules at the time of the incident are outlined in Saunders' SHEQMP for the Lucas Bridge Project (PX 1, Tab 8).
6. Mr Benson acknowledged that Saunders has a prior conviction under the WHS Act. That incident occurred approximately three and a half years before the current incident and occurred within 11 months of Saunders International acquiring Civilbuild. Mr Benson said that at that time, Saunders was working to integrate the WHS systems and to strengthen the safety culture of the workforce, which had been an area identified for improvement before the acquisition. The prior incident is discussed further below.

The Lucas Bridge Project

1. On or around 6 November 2020, Gilgandra Shire Council engaged Saunders to design and construct the Lucas Bridge. The scope of the works was described above.
2. The SHEQMP for the Lucas Bridge Project (PX 1, Tab 8) was site-specific and approved by Gilgandra Shire Council. The SHEQMP was revised several times before the incident on 12 August 2021.
3. All workers, including contractors, attended a site induction. A copy of a site induction document for the Lucas Bridge Project was annexed to Mr Benson's affidavit (DX 2, Tab 8).
4. Mr Benson said that throughout the Lucas Bridge Project Saunders implemented Safe Act Observation (SAO) requirements, as outlined in the SHEQMP (PX 1, Tab 8). The SAOs were completed by Mr Prowse in his capacity as the site supervisor. SAOs completed by Mr Prowse, dated between 10 May 2021 and 10 August 2021, were annexed to Mr Benson's affidavit (DX 2, Tab 9).
5. As part of the Lucas Bridge Project, Saunders designed and fabricated 24 pre-cast concrete girders for the bridge, each measuring approximately 20 metres in length. Due to the length and stresses within the girders, some had "minor bowing". Mr Benson said that bowing of this nature is not uncommon and is a result of the casting stresses. He said that the bowing does not impact the structural integrity of the girders.
6. Mr Benson said that it was expected that the Lucas Bridge Project team would identify any areas where bowing created a building or safety issue.
7. Mr Benson explained that the infill panels that are fitted between the girders are a "long lead" item, meaning they must be ordered up to 12 weeks in advance of a project. At times, due to bowing of a precast girder, infill panels can be too short or too long to fit within the concrete recesses of the girders. Whether bowing impacts the placement of the infill panels depends on the extent of bowing and how the girders are placed in the structure on site. In cases where panels are too long, workers cut the panel to size using equipment on site.
8. When infill panels are too short, Mr Benson said that workers can fabricate a wider panel by bolting two panels together. The wider panel can then be fitted and secured into position. Panels were available at the site to the workers to use this double-up method, which had been used previously. However, before the incident, the double-up method had not been through a formal design certification process. Following the incident Saunders engaged structural engineers who certified that the double-up method would support the concrete pour. A copy of the engineer's drawing certifying that method was annexed to Mr Benson's affidavit (DX 2, Tab 10).
9. Another method used when infill panels were too short was to extend the recess of the girder using timber seating. This method would create a smaller void so that the infill panel could be installed and secured. After the incident, the structural engineers also certified that this method of work would support the concrete pour.

Steps Taken After the Incident

1. After the incident Saunders took steps addressing the issues and formalised procedures for installing infill panels. Mr Benson said that Saunders also took steps to continue strengthening its safety culture and to meet its safety objectives discussed above.
2. After the incident Saunders ceased work on the Lucas Bridge Project until longer infill panels were sourced and cut to size. It took four to six weeks to obtain the longer infill panels. Once work recommenced, the project was completed on 26 April 2022 without further incident.
3. Saunders developed and implemented the Temporary Works Procedure (PX 1, Tab 11; DX 2, Tab 11). The Temporary Works Procedure was issued for consultation on 26 August 2021 and was formally implemented on site when the works recommenced on 24 September 2021.
4. The Temporary Works Procedure includes: 1. A system for standardisation and verification of safe, project specific, temporary works across Saunders' projects. 2. A process to develop a temporary works design brief for construction projects, which includes specifications for the installation, placement, and removal of temporary works (including metal sheet infills where used). 3. A process (where necessary) to develop a third party engineered temporary works drawing to identify the requirements for securing temporary formwork (including metal sheet infills) appropriate for each project.
5. Saunders reviewed its SWMS 03 - "Concrete Construction" to include a specific section on the installation of void panels (infill panels). A copy of the revised SWMS is in PX 1, Tab 12. Saunders also reviewed all its SWMSs for the project.
6. Mr Benson said that in addition to the steps directed at managing risks at the Lucas Bridge Project, Saunders has continued to look for ways to improve its safety systems. Mr Benson listed some of the steps taken by Saunders and Saunders International. Saunders: 1. Invested in additional management level staff by creating a new full-time role of SHEQMP Manager. 2. Implemented a company-wide programme in October 2023 called "Together for Safety". This programme was designed to build safety leadership skills and a safety culture over a five-year period. The programme was developed with an external consultant and involves face-to-face, online and onsite workshops, and reflection and onsite coaching for "frontline" managers and workers. Mr Benson said that this programme cost over $150,000. A copy of the presentation for the Together for Safety programme was annexed to Mr Benson's affidavit (DX 2, Tab 12). 3. Implemented "Two Hours for Safety" as part of the Together for Safety programme. Two Hours for Safety is mandatory for Saunders' leadership employees and is designed to foster a safety culture by dedicating two hours every Thursday to focus exclusively on safety-related activities. Examples of safety-related activities include safety training, toolbox talks, safety reviews, inspections, and reviewing and updating safety documentation, risk assessments and emergency response plans. Mr Benson annexed a copy of the Two Hours for Safety presentation dated 16 November 2023 to his affidavit (DX 2, Tab 13). 4. Undertook a review of the Together for Safety programme in January and February 2024. The presentation summarising the feedback from the programme's participants is annexed to Mr Benson's affidavit (DX 2, Tab 14). The next phase of the programme will commence from 1 July 2024 and will involve managers preparing personal "Together for Safety Action Plans". Mr Benson annexed a copy of his personal Together for Safety Action Plan to his affidavit (DX 2, Tab 15). 5. Undertook a review of processes for managing the risks of falls and falling objects, which are key risks involved in Saunders' business. The review identified areas for improvement which Mr Benson says have "been tracked and closed out". 6. Implemented a "Monthly Safety Theme" programme where a monthly safety video, safety toolbox presentation, and safety posters are developed and shared across the workforce to raise awareness on health and safety risk management processes.
7. Mr Benson also said that Saunders' executive leadership team and board members undertake regular site visits which are designed to highlight the leadership's commitment to workplace safety and to ensure that "safety remains central to the company's thinking".

Cooperation with SafeWork NSW

1. Mr Benson said that Saunders cooperated with SafeWork NSW throughout its entire investigation, including complying with statutory notices and making its workers and managers available to participate in recorded interviews.

Corporate Citizenship

1. Mr Benson stated that throughout its history Saunders has been involved with and donated and contributed to community and charitable organisations. In the last three years, Saunders International contributed $47,318.55 to community and charitable organisations, evidenced in a table annexed to Mr Benson's affidavit (DX 2, Tab 21).

Consideration

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

Objective Seriousness of the Offence

1. 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].
2. 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].
3. 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."
4. 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].
5. 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.
6. 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.
7. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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."
8. 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."
9. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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."
10. My findings about the defendant's level of culpability are based upon the following: 1. The risk was foreseeable but the precautions taken were inadequate. It was not enough for the Saunders site supervisor to just ask if the infill panels were satisfactory. The site supervisor's documented responsibilities included an obligation to "continually observe the process of work for substandard practices/methods". The site supervisor should have inspected the infill panels, particularly as Saunders knew of the bowing in the concrete beams and the excessive gap between the beams, which could not be spanned as originally designed. 2. Senior Counsel for Saunders submitted that Saunders had a safe method of dealing with panels which were not wide enough, which was to bolt two panels together. However, Saunders had no advice, when the work was being done, that such a method was satisfactory (such advice was obtained ex post facto). The manufacturer did not advocate such a method in its brochure. In any event, the plea of guilty includes an admission that Saunders should have prohibited construction work on the bridge until it was confirmed that the infill panels were securely fixed in place: see par 12(a) of the Amended Summons. 3. There was a significant likelihood of the risk occurring and leading to serious injury. 4. The potential consequences of a fall of five metres into a freezing river were death or serious injury. 5. Two workers were exposed to the risk. 6. Steps were available to eliminate or minimise the risk. 7. There was no evidence of any burden or inconvenience of taking such steps. 8. Mr Clarke suffered a serious injury which has greatly affected him and his family. These matters are set out in detail below in the discussion of Mr Clarke's Victim Impact Statement. 9. The maximum penalty for the offence is a fine of $1,782,579 which reflects the legislature's view of the seriousness of the offence.
11. I find that the level of culpability of Saunders is in the lower end of the mid range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].
2. The penalty must reflect the need for specific deterrence. Saunders is still conducting a business. Its operations involve project planning, building construction and civil projects, and the continuing engagement of workers.

Aggravating Factors

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.
2. Saunders has a previous conviction (PX1, Tab 3): s 21A(2)(d) CSP Act.
3. In 2022 Saunders was found guilty and convicted after a trial for an offence contrary to s 32 of the WHS Act: SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163.
4. On that occasion, Saunders was contracted to provide piling works on a site. The victim, Mr Geoffrey Edwards, was contracted by Saunders to transport an excavator and bundles of piles of cylindrical timber logs to the work site.
5. On 16 February 2018, Mr Edwards climbed onto the piles on top of the truck to prepare them to be lifted off the truck. As the load was lifted, and while Mr Edwards remained on top of the truck, the piles swung, so Mr Edwards placed his hands on the load to steady it. As the piles were further lifted, Mr Edwards fell backwards off the truck, landing on his back on the road. Mr Edwards suffered a severe blunt force head trauma and underwent emergency neurosurgery but died six days later.
6. At the time of that incident, Saunders had an "Integrated Management System" (IMS) that included its WHS policies. The IMS required all staff and sub-contractors to be inducted and trained, including in any relevant SWMSs. Mr Edwards was not inducted onto the site and SWMSs relevant to the work were not discussed. Additionally, in 2017 Saunders issued a verbal direction to its employees, instructing that they were not allowed to climb onto the back of trucks or trailers to load or unload them. However, one of Saunders' employees who was working with Mr Edwards and saw him climbing onto the truck did not tell Mr Edwards about the verbal direction because he had seen Mr Edwards climb onto the truck previously and "thought it was safe".
7. For the s 32 offence Saunders received a fine of $375,000 and an order to publish an Adverse Publicity Order.
8. In Meis v R [2022] NSWCCA 118 the Court of Criminal Appeal said at [42] that before a previous conviction could properly be taken into account as an aggravating factor, it is necessary for the sentencing judge to consider: 1. Whether the present offending was an uncharacteristic aberration. 2. Whether the applicant manifested in the commission of these offences a continuing attitude of disobedience of the law. 3. Whether the previous offence illuminates the moral culpability in relation to the current offending or shows a dangerous propensity; or a need to impose condign punishment by way of specific and general deterrence.
9. Two serious breaches of the duty to ensure safety, occurring within less than four years, lead me to conclude that the offence now before the court is not an uncharacteristic aberration. However, Saunders is not a corporation with a continuing attitude of disobedience to the law.
10. It is necessary to take the previous offence into account as an aggravating factor because there is a need for the punishment to reflect both specific and general deterrence. This is a case involving a fall from height. This court has lamented in many cases the frequency of such incidents, but still they happen: see SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526 at [58]; SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13 at [58-59]; SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165 at [26].
11. Part of the sentencing process, and one of the objects of sentencing, is to prevent crime by deterring the offender and other persons from committing similar offences - s 3A(b) CSP Act. The District Court publishes on Caselaw each and every sentencing judgment under the WHS Act. Thus, the industrial community is informed of the significant penalties imposed for offences under the WHS Act, which in theory should have a deterrent effect on persons other than the offender. Further, additional purposes of sentencing include to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community - s 3A(f) and (g) CSP Act.

Mitigating Factors

1. Saunders is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Saunders has been in business for approximately seven years.
2. Saunders is unlikely to re-offend: s 21A(3)(g) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has greatly improved its documentation and its procedures.
3. Saunders has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Clarke was caused by its actions.
4. Saunders entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Saunders a 25% discount for an early plea.
5. Saunders gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

1. 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.
2. 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."
3. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statement

1. The defendant was convicted at the sentence hearing on 20 June 2024. The prosecutor tendered the Victim Impact Statement of Mr Clarke (PX 2), who was present in court but who did not wish to read his statement aloud.
2. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
3. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence: 1. Any personal harm. 2. Any emotional suffering or distress. 3. Any harm to relationships with other persons. 4. Any economic loss or harm that arises from any matter referred to in (1)-(3) above.
4. 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).
5. 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).
6. Mr Clarke said that his life "has changed drastically" since the incident. He still suffers mental and physical pain and is distressed that his injuries and struggles could have been avoided.
7. When Mr Clarke was in the riverbed after falling through the void, he said that he could not feel his feet or move his body. He did not know if he would be rescued in time. He feared that he would never walk again and that he would not see his family again in the same capacity as before he fell.
8. Mr Clarke recalled the "excruciating head and neck pain from the fall" and feeling his body "shutting down" from being submerged in a waterbed in the middle of winter. Mr Clarke described it as "a nightmare that should never have happened".
9. Since the incident, Mr Clarke feels hypervigilant, double-checking everything for fear of somebody getting hurt or dying. Mr Clarke also has trouble controlling his emotions, feeling sad and anxious when he sees an ambulance and having "flash backs from the accident and going numb" when he hears people talking about the incident.
10. Mr Clarke thinks about how he "could have died that day" and describes these thoughts as playing over in his head. Mr Clarke said that he is "the one that has to live through these thoughts everyday with no help and probably will for the rest of my life with no choice when they are in my head".
11. After the incident, Mr Clarke described being in tears during the two-hour helicopter ride to the hospital, fearing for his family and his life, and being in severe pain despite having "as much pain medication as possible".
12. Mr Clarke said that upon arriving at the hospital, doctors and nurses thought he would be unconscious and in need of resuscitation from being in shock and hypothermia.
13. Mr Clarke remembers lying in hospital by himself due to COVID-19 restrictions preventing visitors. He felt alone and isolated.
14. Mr Clarke described the struggles that his family experienced during this time, saying that his children have suffered, asking where their dad was and why their mum was crying.
15. Mr Clarke experienced great distress during his time in hospital following the incident. He described having scans and feeling claustrophobic in the machines. He remembers having a panic attack, fearing that he would not walk again. Mr Clarke now fears hospitals and does not want to take his children to a hospital if they are sick. Mr Clarke also suffered flashbacks to the incident when his wife was in hospital last year giving birth to their youngest child.
16. Mr Clarke's distress was increased by what he described as a "lack of care" when the hospital discharged him at 7.30pm and put him in a taxi, three-hours away from his home, without offering a mental health assessment after his "near death experience" because the hospital "needed the bed space due to covid".
17. When Mr Clarke got home, he wanted to "rest, recover and play with my kids". However, Mr Clarke said that he could not do that because he "couldn't even sit up for longer than 2 minutes without having to lay down due to the dizziness and concussion from the fall". Mr Clarke described feeling "helpless and a failure". Mr Clarke experienced nightmares and bad thoughts whilst on pain medication which made it harder to recover. His other medication made him feel "super sick" and he "felt that nothing was working and that I was never going to get better".
18. Mr Clarke described being unable to play with his children due to his "constant back pain, neck pain, headaches, nightmares and flash backs of the incident". He described seeing the "disappointment in there [sic] little faces and feeling unloved" when he could not play with them, but they could not understand why. Mr Clarke's relationship with his wife also suffered as he became emotionally and physically withdrawn and "closed off", with his "thoughts and nightmares constantly haunting" him, along with "thoughts of being a failure as a husband".
19. Mr Clarke began seeing a psychologist, however due to COVID-19, it was via telephone which he found hard. He struggled to express his "true emotions and feelings" over the phone. Mr Clarke also found it difficult to focus after his appointments because talking about the incident brought up "emotions from being in the accident".
20. Mr Clarke described weeks passing with doctor appointments but without pain ceasing. He said it took eight months for him to be able to play with his children again, but that it was eight months of "precious memories and time lost with them that I will never get back".
21. Mr Clarke remains angry about the incident and recalled being "anxious thinking about going back to work" and being anxious when at work because he did not "want to see the people that caused my accident". Mr Clarke was unsure if he could control his anger after "being made [to go] back to work after not being listened to" and the incident being "caused" by Saunders not listening to his concerns about safety.
22. Mr Clarke found his first day back at work an "embarrassment". His self-esteem was reduced and he missed his job because he "worked hard to get there". Mr Clarke felt dismissed, with no one mentioning "how much pain I was still in and only being able to sit up for 15 minutes at a time without being in pain again". Mr Clarke was uncomfortable and felt hopeless.
23. Mr Clarke said that he still feels hopeless, worrying that he "will not recover and still be depressed". He still feels "anger, frustration [and] disappointment of missing out on so many things". Mr Clarke felt like "no one was listening", causing further feelings of hopelessness and depression.
24. Mr Clarke also had difficulties with iCare, reportedly being told that he would lose his payments and be forced to be back at work, which he did not understand as he had a letter from his psychologist stating that he was not ready to return to work. Mr Clarke said, "I was left feeling as though I wasn't cared about, I felt useless due to the lack of care in the system".
25. Mr Clarke said that his experience "has left me in pieces in my head" and that he has "constant triggers". His "emotions are heightened" which affects his family daily. He struggles with built-up anger and despair over having no answers about his pain. He described "looking for danger that might not even be there" and feeling "helpless" to control the environment around himself and his family. Mr Clarke said that he has "no closure or answers from my case".
26. Mr Clarke described the three years since the incident as "absolute hell" for himself and his family. He has lost opportunities due to his health and had to take six months off work last year because his mental health "rapidly" declined and he had "built up" anger inside him from the incident. Mr Clarke felt that he had no help or anyone to talk to because he had been told that he "was fine on paper". He said that he could not fully support his wife when their youngest child was born due to his fear and nervousness around hospitals after the incident.
27. Mr Clarke again conveyed his distress at the "pain and suffering" that he and his family have endured and expressed his desire for people to hear what he is saying. Mr Clarke concluded his statement by saying, "I can only hope that in time I do get better, mentally and physically and also my wife and children as they are going through this beside me too".
28. I will take into account the ordeal of Mr Clarke in coming to an appropriate sentence.

Costs

1. The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

Penalty

1. My orders are: 1. Saunders Civilbuild Pty Ltd was convicted on 20 June 2024. 2. The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Saunders Civilbuild Pty Ltd to pay a fine of $300,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Saunders Civilbuild Pty Ltd to pay the prosecutor's costs.

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: 27 June 2024