District Court New South Wales Medium Neutral Citation: SafeWork NSW v Sky High Rigging Services Pty Ltd [2020] NSWDC 778 Hearing dates: 25 November 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine is $600,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $450,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant to pay the prosecutor's costs as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risks – what defendant ought reasonably to have known Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Category: Sentence Parties: SafeWork NSW (Prosecutor) Sky High Rigging Services Pty Limited (Defendant) Representation: Counsel: Mr P Gow (Prosecutor) Mr M Shume (Defendant) Solicitors: Ms A Wong, Department of Customer Service (Prosecutor) Mr J Khoury, George Khoury & Co (Defendant) File Number(s): 2020/86916 JUDGMENT 1. Sky High Rigging Services Pty Limited ('the defendant') is a person conducting a business or undertaking ('PCBU') involving the installation, servicing and maintenance of hoists for the construction industry. The defendant also provides personnel for the installation, servicing and maintenance of hoists. 2. David Jones is the director of the defendant and Nathan Hunt is the secretary. 3. The defendant pled guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act') that as a person with a health and safety duty under s 19(1) of the Act, it failed to comply with that duty and, in doing so, exposed Adam Bures to a risk of death or serious injury. 4. The maximum penalty for the offence is $1,500,000.00. 5. The prosecutor tendered an Amended Summons and an Agreed Statement of Facts which forms the basis of the background below. The defendant tendered the Affidavit of Nathan Hunt filed 11 November 2020. BACKGROUND 1. Waterside Constructions (Aust) Pty Limited ('Waterside Constructions') was the principal contractor of a construction project known as 'Skyhaus' located at 420 Macquarie Street, Liverpool, New South Wales. The construction project comprised a thirty storey tower known as 'building A', a four storey building known as 'building B', and the construction of a thirty-two storey residential apartment building with some commercial spaces known as 'building C'. 2. On or about 4 August 2016, Waterside Constructions accepted a proposal from Sky High Group Pty Limited ('Sky High Group') for the design, installation, commissioning, maintenance, dismantling of a SkyLift Materials Hoist ('the materials hoist') at building C of the Skyhaus construction project ('the site'). The site was a workplace for the purposes of s 8 of the Act. 3. Sky High Group was the owner and manufacturer of the materials hoist and hired it to Waterside Constructions. David Jones and Nathan Hunt were the directors of Sky High Group. The defendant provided labour to Sky High Group and the defendant was responsible for the erection, servicing, maintenance, installation of level jumps, and removal of the materials hoist from the site. 4. Adam Bures was employed by the defendant as a rigger. Adam Bures held a high risk work ('HRW') licence for Basic Rigging and was licensed for about 11 weeks as at the date of the accident. Adam Bures commenced his employment with the defendant in March 2015. 5. Jared Jones was employed by the defendant as a leading hand. Jared Jones held a HRW licence for Advanced Rigging. He commenced his employment with the defendant in March 2015. THE MATERIALS HOIST 1. The defendant installed the materials hoist at the site in or around June 2017. 2. The materials hoist was a metal platform used to load and transport building materials from level to level at the site. In addition to the materials hoist, there were two separate personnel hoists used to transport workers from level to level. 3. The materials hoist consisted of a cantilever platform (referred to as the hoist deck) measuring 5560m in length and 2290mm in width. The materials hoist was powered by a motor panel. The sides of the hoist deck were contained by a barrier measuring 1200mm in height. 4. The materials hoist was mounted on a hoist mast consisting of a steel lattice frame. Pinion gears powered by the motor panel moved the materials hoist up and down the hoist mast. A limit was set at a point near the top of the hoist mast which prevented the mast from passing that point (and, falling of the top of the hoist mast). 5. The materials hoist was to service all 32 floors of the site. 6. The hoist mast was secured at the base to a concrete foundation. Lateral support for the hoist mast was provided by steel braces referred to as mast ties. Each mast tie was parallel to the hoist deck, extending perpendicular to the building, and were attached between the mast and the concrete slab of every second floor of the building, except for Levels 31 and 32 where a mast tie was installed at both levels. 7. As the materials hoist moved up and down the hoist mast, it would pass by each mast tie. At Level 31, the horizontal distance between the side barrier of the materials hoist deck and the mast tie was 90mm. When the materials hoist was raised up and past the mast tie there occurred a shear point. 8. As the building was constructed, it was necessary for the hoist mast to be extended to allow the materials hoist to reach each new level of the building. The process of extending the hoist mast was known as a 'level jump'. 9. A small work platform referred to as the crow's nest was located directly above the motor panel of the materials hoist. The crow's nest contained a barrier with steel mesh infills. The purpose of the crow's nest was to give safer edge protection when setting limits from above the motor plate. The crow's nest was accessible by a removable ladder. 10. Metal gates ('the landing gates') were positioned at each landing of the building on the site to provide access to the materials hoist. Each gate was 1800mm tall and 1100 metres wide. 11. The materials hoist was operated using a handheld remote control, two of which were available at the site to operate the materials hoist. Each remote control had 8 push buttons, an on/off switch, and an emergency stop switch. A receiver unit for the remote controls was attached to the inside of the door of an electrical cabinet within the materials hoist deck. The first remote control to establish a link with the receiver unit became the active remote. To establish a link, the operator turned the on/off switch to on and pressed the button labelled 'start/aux1'. The control button to raise and lower the materials hoist was 'hold to run' meaning that the materials hoist stopped when the control button was released. If the operator became incapacitated and released the control button, such as by losing consciousness, the machine would deactivate and stop. When the emergency stop switch ('e-stop') was activated on the active remote, the second remote was able to establish a link and operate the hoist. The second remote was locked away and not in use, which was normal practice. THE INCIDENT 1. On 19 March 2018 at approximately 10:00am, Adam Bures and Jared Jones arrived at the site to conduct rigging work on the materials hoist. They were to install a level jump to Level 32 of the building which was the final level jump to be installed. 2. On arrival, they met with Waterside Constructions workers, and the materials hoist and one of the remote controls was handed over to Adam Bures and Jared Jones. The second remote control was kept in the ground floor office and was not in use at the time of the incident. 3. Adam Bures and Jared Jones commenced work on the materials hoist and completed a level jump from Level 31 to Level 32, including the fitting of the last steel mast tie. 4. At about 1:00pm, Jared Jones left Adam Bures by himself to fit and set the travel limits to the materials hoist with instructions for Adam Bures to drive the materials hoist down ground level after he had completed the work. This task would normally take between 15 to 20 minutes. The limits must be set from the crow's nest. 5. Jared Jones went to Level 1 to pack up some tools and complete the hoist handover paperwork. At 1:22pm, Jared Jones noticed that Adam Bures had not come down to Level 1. Jared Jones called Adam Bures though he did not answer his mobile phone. After a short period of time, Jared Jones called Adam Bures a second time, though again received no answer. 6. Jared Jones travelled back to Level 31 on a personnel hoist to check on Adam Bures. When Jared Jones arrived at Level 31, he saw that Adam Bures was trapped between the side edge of the Materials Hoist and the Level 31 mast tie. Jared Jones ran to the materials hoist, lifted the safety gate off its hinges and jumped down into the materials hoist. Adam Bures was unresponsive. Jared Jones called out for help and two formworkers from another level came to his assistance. At the time Jared Jones discovered Adam Bures, he saw that the lanyard attached to the remote control was coming out from underneath Adam Bures' chest and that Adam Bures had the remote control in his hand. Jared Jones attempted to retrieve the remote control, but it was stuck. 7. Jared Jones and the other workers manually lowered the materials host enough to free Adam Bures. The workers commenced CPR and continued until emergency services arrived. Resuscitation was attempted by paramedics for over an hour. At around 2:47pm, Adam Bures was pronounced dead at the scene. Adam Bures died as a result of traumatic asphyxiation from crush injuries to the chest and neck. 8. There were no witnesses to the incident. 9. The tasks that were done on the day of the incident required a rigger on the materials hoist to test the working of the materials hoist over the new section of the hoist mast and troubleshoot any noises it made while it ran. It was standard practice to complete a series of tests to ensure those limits were working, which included driving the materials hoist upwards. 10. Jared Jones stated that a circumstance in which a worker would lean over the edge of the materials hoist would be to investigate a noise, for example, a banging sound. David Jones also said that a worker might lean over the side while the materials hoist was moving to 'fault find'. 11. Adam Bures was found leaning over the side barrier of the materials host very close to the hoist mast where the rollers were positioned. He had raised the materials hoist by use of the remote control and his upper chest and neck were crushed between the barrier of the materials hoist and the mast tie. SYSTEMS OF WORK BEFORE THE INCIDENT 1. The usual practice for use of the materials hoist was as follows. One person, operator 1, would remain at ground level and load the hoist with materials. Once the hoist was loaded, operator 1 would inform operator 2, who was located on the 'destination level', that the materials hoist was loaded and ready. Operator 2 would turn on their remote control and guide the materials hoist to their level. Once the materials hoist arrived at the destination level, operator 2 would turn off their remote control, open the landing gates and unload the materials. Once the hoist was unloaded, operator 2 would close the landing gates and inform operator 1 that the materials hoist was ready to be lowered. Operator one would then turn on their remote control and take control of the materials hoist. Only one remote control could operate the materials hoist at any one time (aside from when the e-stop was activated). 2. Workers performing rigging work on the materials hoist were required to ride the hoist from within the platform, particularly when performing tasks such as maintenance, repair, troubleshooting or setting limits. It was not reasonably practicable to do this work without being inside the materials hoist. This practice exposed workers to a risk of injury from accessible shear points if they caused any part of their body to protrude from the side barriers. Additionally, the use of a remote control to operate the materials hoist while the riggers were working on the hoist allowed the operator to move freely on the hoist platform whilst working. 3. The risk of being struck by a fixed object or structure while leaning over the edge of the materials hoist whilst it was in motion was a known risk. David Jones acknowledged that there was always a risk of crushing and Jared Jones acknowledged that the greatest hazard on the job was the crush hazard. 4. The manual for the materials hoist as at the date of the incident was the 'SkyLift & Deck Operations Manual' ('the manual') which documented the following: 'Important Safety Instructions Over the years serious accidents have occurred during the erection and dismantling of rack and pinion hoists. Common to these accidents has been the "human factor'', i.e. non adherence to proper safety procedures and common sense. This document affects those personnel involved with the erection, dismantling and servicing of such equipment. Some examples Leaning over the safety railing on the cage roof while the hoist is moving upwards can cause you to be struck by a tie, counter-weight or a cable guide. Avoid the risk of accidents by carefully studying these instructions regularly. Think clearly! Do not rush the work and always check to make certain that the work is being done properly. … When working from the cage roof take precautions to avoid being struck by mast ties, cable guides, landings, counter-weights, structure openings, etc. while hoist is moving.' 1. The manual did not instruct workers how to avoid the overhead mast ties or other structures when performing work and did not prohibit workers from leaning over the edge of a hoist while it was in motion. 2. It was common practice for a rigger to lean over the edge of the hoist when it was not moving such as when running cables, attaching objects to the mast, inspecting or adjusting rollers, and installing sensors. The defendant's workers would sometimes lean over the side edge of the hoist when troubleshooting or investigating faults. Generally, workers would stop the hoist before doing so, however on some occasions workers would lean over the side edge when operating the hoist to detect issues with the hoist, such as an unusual noise when operating. 3. Workers of the defendant would use different procedures when required to lean over the edge of the hoist whilst it was in motion. James Loveridge, a rigger employed by the defendant, stated that David Jones instructed him to never look over the side. However, James Loveridge would 'look up and look down' when operating the hoist to avoid obstacles such as 'formwork which is poking out over the hoist'. Daniel Lottey, an electrician employed by the defendant, stated that he understood that workers should not have their heads out over the moving hoist, there were occasions on which he would have to lean over the edge of the moving hoist, and to do so he would look over the edge of the hoist on the 'offside' where there were no ties. Daniel Lottey was not instructed or trained by the defendant to look over the offside, rather this was a practice he deemed safest. Ali Anderson, a rigger employed by the defendant, stated that he would stand 'at the back' of the hoist where there were no objects or overhead ties. Again, this was not due to any training or instruction provided by the defendant, but an adopted practice deemed safest by Ali Anderson. ADAM BURES' TRAINING AND SUPERVISION 1. At the time Adam Bures commenced employment with the defendant, he did not hold a HRW licence in rigging. David Jones provided on-the-job training to Adam Bures. After approximately four months of Adam Bures doing yard work at the defendant's workshop, which involved building hoists, and packing and stacking rigging materials to become familiar with the hoists, David Jones deemed Adam Bures competent to graduate from yard work to working in the field under David Jones' supervision. Adam Bures attended TAFE one day per week completing a Basic Rigging licence. 2. As part of the on-the-job training, David Jones stated that he told Adam Bures to never drive the hoist whilst leaning over the side of the hoist. Adam Bures had signed the last page of the manual on 17 May 2017 as part of his induction when he started work with the defendant. 3. Adam Bures passed the Basic Rigging Assessment on 13 November 2017. He had very little experience in rigging work including level jumps. David Jones stated that Adam Bures was competent in carrying out non-standard complex level jumps, however, Adam Bures was not accustomed to working alone. 4. On the day of the incident, Adam Bures was working under the supervision of Jared Jones. It was usual practice for riggers to work in pairs and not be left alone for safety reasons. However, before the incident, Jared Jones had left Adam Bures on his own so that Jared Jones could complete residual tasks to save time and allow the workers to go home earlier. Jared Jones stated that this procedure, where one worker remained on the materials hoist while the other completed the residual tasks such as paperwork, had been adopted for the previous 10 level jumps they had performed at the site. Prior to the incident, the defendant had installed 27 level jumps and attended nearly every week to install a new level jump. Jared Jones had worked on most of the level jumps and Adam Bures had worked on about half. SAFE WORK METHOD STATEMENT 1. Prior to an induction to each job, workers of the defendant were provided with a site-specific Safe Work Method Statement ('SWMS'). As at the date of the incident, the defendant had a SWMS entitled 'SH&E Work Method Statement' for the work activity of 'Hoist erection, maintenance and climbing' dated 19 May 2017 ('Hoist SWMS'). 2. The SWMS identifies the risk of crush injuries of the hands or fingers when performing various tasks, however, the risk of a crush hazard between the side barrier of the materials hoist and an overhead steel mast tie was not identified in the Hoist SWMS. 3. In relation to the task of 'driving hoist while setting rollers', the Hoist SWMS identified the hazard of a crush injury, specifying the control measures of being aware of the hoist position on mast, providing a spotter if necessary, and instructing personnel positioned on top of the hoist to remain within the confines of the handrails. It did not prohibit workers from leaning over the edge of the side barrier of the materials hoist while it was moving. SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. Following the incident, the defendant installed guarding above the side barrier edge to prevent riggers being struck by the mast ties. When the guards are removed for the purpose of performing a level jump, the hoist will not operate in either direction. The guard needs to be replaced for the hoist to operate. 2. In response to a SafeWork NSW improvement notice, the defendant updated the Hoist SWMS (26 March 2018) which for the task of 'driving of hoist', identified the hazard 'riggers are to remain 1m back from hoist handrails while driving off remote control'. 3. The defendant also implemented a High Risk Safe Work Method Statement dated 26 March 2018 for the task of 'Hoist Erection/Dismantle, Maintenance & Climbing of Single SkyDECK' ('HRSWMS'). The HRSWMS contained the following measures to control the risk of the materials hoist colliding with any worker during erection, maintenance or general use: 'The person in control of the Hoist must ensure that: a. Guarding is appropriately fixed (e.g. permanent barriers in the form of Landing meshing to AS2550.7, interlocked barrier in the form of Electrically and Mechanically interlocked landing gates commissioned prior to handover, Hand rails on the roof of the hoist of platform, signage indicating pinch points and crush zones on the appropriate work areas of the hoist, including the roof or platform. b. Additional guarding to be installed adjacent to 'Mast tie zone' prior to the hoist being moved by hoist maintenance personnel. The guard is to have a limit switch preventing driving while the guard is removed. c. Additional pinch point signage to be installed on guards and adjacent to the motor plate. d. Ensure workers are inducted into work procedures including but not limited to: i. When working out of crows nest, a 2nd trained person must be present. Operation of the remote control is to be by the 2nd person who is in on the platform or roof and maintaining visual contact with the person in the crows nest at all times and to operate under the instruction. ii. When driving from on the platform the trained operator is to keep all body parts within the confines of the handrails at all times. iii. When doing inspections of the mast and ties, only inspect while driving in a downward direction. Stop at each location to be inspected and isolate the hoist prior to inspection.' CONSIDERATIONS The Risk 1. The risk is one that: 1. only exists when the materials hoist is in operation; 2. has a person in it; 3. the person puts their body outside the structure of the hoist; and 4. they are travelling upwards. 1. There is no crush point if you are travelling downwards. 2. For these reasons the risk is not one that exists all the time. It is a risk that exists only when one of the defendant's workers is using the hoist. The risk only comes to fruition if the workers lean outside the hoist whilst travelling upwards. 3. The incident occurred when Adam Bures, a licensed rigger (but a relatively inexperienced one having been licenced for 11 weeks) was crushed between the materials hoist and a steel mast tie when the hoist was being driven upwards. The distance between the side of the hoist and the steel tie where Adam Bures was crushed was 90mm which represented a shear point as the hoist was raised and driven past the steel tie. 4. Adam Bures and his supervisor, Jared Jones had performed a 'level jump' which was the process of extending upwards the mast tower so that the hoist could reach a newly constructed level of the building. Jared Jones had left Adam Bures to work alone to set the hoist's travel limits while he (Jared Jones) left to pack up some tools and complete the paperwork down on the ground level. 5. When Adam Bures was found, he had in fact set the travel limits. SENTENCING 1. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; and 6. to recognise the harm done to the victim of the crime and the community. THE NATURE OF THE DUTY 1. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training and instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act. 2. The duty required the defendants to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [34]. 3. The notion of reasonable practicability is informed by the considerations found in s 18 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable. 4. The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness. 5. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out their reasons why sentencers should have particular regard to the maximum penalties specified by statute. Their Honours stated: '…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.' SENTENCING PRINCIPLES 1. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3 of the Act. 2. The court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis": Markarian v The Queen (supra). 2. This approach to sentencing was reiterated by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way: '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 [2011] HCA 39; [2011] 244 CLR 120. 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.' 1. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89]. OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The duties of the defendant requires that it ensures the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors. 3. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5. 4. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714]. 5. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465. 6. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61. 7. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows: '[34] 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 to guard against 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. ….. [42] 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 pressure event of the force 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs. ….. [53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken. (my emphasis) 1. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be. 2. The relevant factors in determining the defendant's culpability are: 1. The hoist was not designed to transport people, only materials. But riggers are required to ride in hoists every time they perform a level jump (which includes setting the travel limits), and also when performing maintenance, troubleshooting and repairs. 2. It is an agreed fact that the risk was known to the defendant, and therefore was greater than a reasonably foreseeable one. The defendant's director, David Jones (father of Jared Jones) acknowledged that there was always a risk of crushing, and Jared Jones (the leading hand) acknowledges that crushing was the greatest hazard on the job. 1. Notwithstanding: 1. The known risk; 2. That the crushing risk was always there when travelling upwards; and 3. It was the greatest risk on the job. 1. Nathan Hunt stated in his affidavit at [62] that "the risk of crush injury was low", which cuts across the proper assessment of the risk that I must make. 2. In response to this known risk, the defendant bought the Manual to the attention of workers, including Adam Bures, which set out that leaning over the hoist whilst moving it upwards can cause one to be struck by certain objects including a steel tie and warned workers to take precautions to avoid being struck. However, the manual did not instruct workers as to how to avoid the ties when performing the required work; Agreed facts at [45], and did not prohibit leaning over the edge whilst the hoist was in motion; Agreed Facts at [46]. Contrary to the assertions of Nathan Hunt in his affidavit at [38], the Manual did not clearly state "there was a risk of crush injury from leaning over the handrail". 3. Indeed, the three workers referred to at [50] of the Agreed Facts each had their own personal method of operating the hoist and leaning over the edge when troubleshooting and investigating faults. As at the date of Adam Bures' death, there was therefore a dangerous practice whereby the defendant's workers leaned over the side of moving hoists to carry out the defendant's work, which is what happened in Adam Bures' case. 4. The Hoist SWMS relevant to the task that Adam Bures carried out similarly did not caution against the specific crush injury but referred to hands and fingers only, nor did it prohibit workers from leaning over the edge whilst the hoist was moving; Agreed Facts at [60]. 5. It is an agreed fact (at [37]) that after a level jump is performed and the travel limits have been set, the rigger is to test the hoist by driving it up and down the newly added section of the mast to troubleshoot any unusual noises from its running gear, such as the rollers. It was standard practice to drive the hoist upwards to ensure the travel limits were working correctly. 6. It is also an agreed fact that a rigger may lean over the side of the hoist to investigate a noise or to 'fault find' (at [38]). Adam Bures was found over the side of the hoist very close to the mast where the hoist's rollers were located having raised the hoist by remote control and crushing himself at the shear point. However, as against the agreed fact at [38] and the evidence of the three workers at [50], Nathan Hunt stated in his affidavit at [55] that there was "no work related reason" for Adam Bures to have been leaning over the side of the hoist. That evidence however fails to recognise the practical reality of what the defendant's workers were actually doing in order to carry out the defendant's work. 7. Adam Bures was left to work alone contrary to the defendant's own procedures, and was left alone by the leading hand and his supervisor Jared Jones. In that regard, Adam Bures was described by some of the defendant's workers as the least experienced in the company in terms of rigging work and performing level jumps; Agreed Facts at [53], and he was not accustomed to working alone; Agreed Facts at [55]. 8. The practice of leaving a worker alone in the hoist had developed into a procedure in its own right having been adopted for the last 10 level jumps: Agreed Facts at [57]. In that regard, Nathan Hunt said the defendant was not aware that workers were not following the defendant's systems prior to the incident (at [49]) which itself plainly demonstrates a failure on the defendant's part to monitor and enforce its own safety procedures: see particular 14(d), Amended Summons. 9. The Court is obliged to make an assessment of where, on the scale of criminality, the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18]. 10. The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00 and for the individual defendant is a fine of $300,000.00 which reflects the legislature's view of the seriousness of the offence. 11. By its plea, the defendant has conceded that there were steps which, in all the circumstances of the incident were reasonably practicable, and if taken, would have reduced the risk. 12. I accept that this offence falls within the mid/high-range of offending for the following reasons: 1. The relevant risk was known to the defendant; 2. The risk presented itself every time a worker stepped onto the hoist and drove it upwards; 3. The risk of serious injury or death was not remote; 4. The gravity of such serious injury or death was not lost on the defendant given its director and leading hand acknowledged there was an ever-present risk of crushing; 5. Written materials relevant of the risk such as the hoist's operations manual and SWMS did not prohibit the practice of leaning over the hoist whilst in motion; 6. Notwithstanding verbal warning not to lean over when moving upwards, workers had their own methods of operating the hoist whilst looking over the edge during troubleshooting and repair activities. This demonstrates a failure in training, instruction, supervision, the monitoring of work practices and the implementation of unequivocal written procedures which directed attention to the actual risk, rather than generalisations; 7. The defendant, through its leading hand, permitted the ongoing practice of allowing one rigger to work alone, contrary to its safety procedures; and 8. The ease by which the risk could have been eliminated or minimised by the taking of certain steps as illustrated in the Amended Summons at [14], means that they were reasonably practicable. DETERRENCE 1. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. 2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons associated with hoist work and rigging generally. This is particularly so when persons are required to perform work the nature of which is inherently dangerous. 2. Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with rigging and working with hoists in an industrial context. 3. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. 4. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors. 5. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.' 1. In these circumstances, I find that the need for specific deterrence is significant given that the defendant is an on-going concern, remains in the industry and continues to perform high risk work employing numerous workers. This requires a significant component for specific deterrence. 2. The penalty imposed must, to my mind, send a strong message to the relevant industry and this defendant in particular, that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or plant as is reasonably practicable: s 3 of the Act. AGGRAVATING FACTORS 1. Adam Bures suffered fatal injuries: s 21A(2)(ib) of the Sentencing Act. 2. Members of Adam Bures' family and friends were physically present in court and also observed via the audio visual link. Victim Impact Statements were tendered by Kate Bures, mother of Adam Bures (Exhibit 2), Alicia Kaye Bures, sister of Adam Bures (Exhibit 3) and Roman Bures, father of Adam Bures (Exhibit 4). 3. The content of the statements was distressing to read. The family of Adam Bures have suffered significantly, and are likely to continue to do so for the rest of their lives. For parents to have to bury a child, is in the wrong order and must be excruciating. Alicia has lost her only sibling whom she viewed as her protector and confidant. The family continue to struggle with their sense of loss and profound grief on a daily basis: s 21A(2)(g) of the Sentencing Act. MITIGATING FACTORS 1. The defendant does not have a record of previous convictions: s 21A(3)(e) of the Sentencing Act. 2. The defendant entered a plea of guilty the day that the Amended Summons was filed, and the prosecutor concedes that it ought be afforded the conventional 25% discount based on the utilitarian value of the plea: s 21A (3)(k) and s 22 of the Sentencing Act 3. Section 21A(3)(i) of the Sentencing Act provides a mitigating factor where the defendant has shown remorse and contrition for the breach, and has accepted responsibility for the breaches of the legislation. 4. Although Nathan Hunt stated at [16] of his affidavit that the defendant accepted it contravened the Act, and that the pleaded particulars would have minimised the risk to workers, I am not persuaded that the defendant has actually accepted responsibility for its actions in circumstances where Nathan Hunt states as follows at [49] and [50] of his affidavit: '[48] Jared had been working on hoists since 2013 and with Sky High since 2016. Over the course of his employment he has been involved with all facets of hoist rigging. Jared started working under David Jones and demonstrated a high aptitude to problem solve and organise jobs/sites. From early on Jared showed a willingness to learn and an ability to organise jobs and workers. Throughout his tenure and prior to the incident, Jared had not been the subject of an investigation undertaken by a safety regulator, a prosecution brought by a safety regulator or been issued with an enforcement notice by a safety regulator or other relevant body or individual with jurisdiction to do so. There have been no further serious safety incidents at any of Sky High sites since the incident. [49] I held the view that prior to this incident that Sky High could rely upon him to follow the systems we had in place and enforce the systems we had in place to ensure safety. I was deeply disappointed that Jared failed to follow the requirement for two workers to work together on the day of the incident. At no point prior to the incident had I received any information indicating that workers were not following our systems. I strongly believe that had Jared followed the required systems that Adam would still be with us.' 1. This to my mind is not an acceptance of wrong doing on behalf of the defendant, but is a statement by a director of the defendant blaming someone else for the breaches of Act that the defendant has pled guilty to. This attempt to apportion the responsibility has not caused me to extend any further leniency to the defendant on the basis that it has accepted responsibility for its actions, as quite frankly it has not. 2. I do however accept that through the steps that the defendant has taken in implementing engineering controls (interlocked barriers), and are looking to increase safety further by moving to controls of the hoist, suggests that the company has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 3. The defendant also submits that it is a small operation, has 6 employees and that different sized companies ought be dealt with differently in terms of penalty. I accept that to be the case. 4. The appropriate fine is $600,000.00. The defendant is entitled to a discount of 25% for the early plea. PENALTY 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine is $600,000.00 and that will be reduced by 25% to reflect the early plea. 3. Accordingly, I order the defendant pay a fine of $450,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant to pay the prosecutor's costs as agreed or assessed. ************ 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: 18 December 2020