SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited [2020] NSWDC 597

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Lendlease Engineering Pty Limited; SafeWork NSW v Bouygues Construction Australia Pty Limited [2020] NSWDC 597 Hearing dates: 2 October 2020 Date of orders: 2 October 2020 Decision date: 09 October 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Penalty for Lendlease Engineering Pty Limited (2019/158579): (1) Lendlease Engineering Pty Limited was convicted on 2 October 2020. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Lendlease Engineering Pty Limited to pay a fine of $375,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order Lendlease Engineering Pty Limited to pay the prosecutor's costs agreed in the amount of $45,000. Penalty for Bouygues Construction Australia Pty Limited (2019/158619): (1) Bouygues Construction Australia Pty Limited was convicted on 2 October 2020. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Bouygues Construction Australia Pty Limited to pay a fine of $375,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order Bouygues Construction Australia Pty Limited to pay the prosecutor's costs agreed in the amount of $45,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – worker was undertaking the task of desludging flow balance tanks – worker suffered fatal crush injuries after a sudden release of stored energy in a pressurised piping system being used to pump waste water and sediment from the construction of an underground tunnel to tanks on the surface – absence of a Safety in Design process – failure to provide a system that minimised uncontrolled release of energy – failure to provide adequate welds attached to the pipe support structure – failure to implement and enforce a Safe Work Method Statement for desludging the flow balance tanks – inadequate provision of information, instruction and training to workers Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Occupational Health & Safety Act 1983 (NSW), ss 8, 15,16 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 Texts Cited: Australian Standard 4343:2014, Pressure Equipment – Hazard Levels Australian Standard 4041–2006, Pressure Piping Australian Standard 1554.1:2014, Structural steel welding – Welding of steel structures Category: Sentence Parties: SafeWork NSW (Prosecutor) Lendlease Engineering Pty Limited (Defendant) Bouygues Construction Australia Pty Limited (Defendant) Representation: Counsel: C Magee (Prosecutor) B Hodgkinson SC (Defendant)