District Court New South Wales Medium Neutral Citation: SafeWork NSW v Scott's Refrigerated Logistics Pty Ltd [2024] NSWDC 86 Hearing dates: 20 February 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The defendant is to pay a fine of $800,000.00. (3) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (4) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Scott's Refrigerated Logistics Pty Ltd (Defendant) Representation: Counsel: Ms K Curry (for the Prosecutor) No appearance (for the Defendant) Solicitors: Department of Customer Service (for the Prosecutor) No appearance (for the Defendant) File Number(s): 2023/215628; 2023/215968 and 2023/215657 JUDGMENT 1. At the commencement of the proceedings, the prosecutor sought leave to withdraw the Summons in two of the matters listed for hearing and to file an Amended Summons in Court. 2. I made the following orders: * In matter 2023/215628, I grant leave to the prosecutor to withdraw the Summons and it is dismissed with no order as to costs. * In matter 2023/215968, I grant leave to the prosecutor to withdraw the Summons and it is dismissed with no order as to costs. * In matter 2023/215657, I grant leave to the prosecutor to file an Amended Summons in Court. 1. As a consequence of those orders, the only matter to proceed was 2023/215657. 2. The Amended Summons detailed the offence as on 6 July 2021, on a section of Macleay Valley Way in Clybucca, New South Wales, Scott's Refrigerated Logistics Pty Ltd ('SRL'), being a person conducting a business or undertaking ('PCBU') who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('WHS Act') to ensure so far as was reasonably practicable the health and safety of workers while the workers were at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Darren Bowden ('Mr Bowden'), Adam Bartlett ('Mr Bartlett'), James Brown ('Mr Brown') and Damien Heffernan ('Mr Heffernan'), to a risk of death or serious injury contrary to s 32 of the WHS Act. 3. At all material times, SRL's business or undertaking involved the transport of temperature-controlled freight across Australia. The business was conducted jointly with two other entities, namely: 1. Scott's Refrigerated Logistics QLD Pty Ltd (ACN: 148 136 270), a corporation ('SRL QLD'); and 2. Scott's Refrigerated Freightways Pty Ltd (ACN: 162 034 326), a corporation ('SRF'). 1. SRL QLD and SRF engaged workers to drive vehicles, including trucks fitted with trailers, to transport freight across Australia. SRL QLD employed Mr Bowden to drive trucks fitted with trailers to transport freight. 2. On 27 February 2023, SRL was put into external administration, and on 3 April 2023 a liquidator was appointed. On 21 August 2023, when the Summons was first before the Court, the liquidator's representatives appeared on behalf of SRL pursuant to s 246 of the Criminal Procedure Act 1986 (NSW) ('CP Act'). On that occasion it was noted that the liquidators would not take an active role in the proceedings and were excused by the Court from further appearing in the matter. The prosecutor tendered (exhibit C) a copy of an email trail between the solicitor for the prosecution and the solicitor from K & L Gates, solicitors who had previously appeared for the defendant. I am satisfied that the liquidator is aware of the proceeding and does not wish to appear. 3. The remaining matter was before me on 20 February 2024 for an ex parte hearing. The matter proceeded on the basis that the defendant has entered a plea of not guilty, and the prosecution is required to prove the elements of the offence beyond reasonable doubt. 4. The Court has the power to proceed to determine the matter in the absence of the defendant pursuant to s 250 of the CP Act. 5. SRL was part of a national logistics group involving the transport of temperature-controlled freight across Australia. In NSW, the drivers conducted vehicle changeovers that involved uncoupling and coupling trailers in various locations. One such changeover location was along a stretch of road next to an out-of-service BP service station located at 2171 Macleay Valley Way in Clybucca ('Clybucca Changeover Site') ('CCS'). 6. The offence occurred when Mr Bowden was struck by a truck at the CCS when he was conducting changeover activities on 6 July 2021. Tragically, Mr Bowden lost his life in the accident. 7. The prosecutor alleges there was a risk to the health and safety at the CCS, that being a risk of workers suffering serious personal injury or death as a result of being struck and run over by traffic whilst undertaking a changeover along that stretch of road. 8. Further, the prosecution alleges that the risk manifested on 6 July 2021, at approximately 12.30am, when Mr Bowden was struck and killed by a truck travelling in the northbound lane while undertaking his duties as a linehaul driver. The posted speed limit at that stretch of road was 100 kilometres per hour. 9. The prosecution alleges that SRL failed to comply with its duty under s 19(1) of the WHS Act to ensure the safety of workers so far as reasonably practicable, by failing to take the measures to manage risk set out at paragraphs 16(a)–(d) of the Amended Summons. As a result of SRL's failure to comply with its duty under s 19(1), linehaul drivers, including Mr Bowden, Mr Bartlett, Mr Brown and Mr Heffernan, were exposed to a risk of death or serious injury. 10. The Prosecutor's Tender Bundle ('PTB') was taken into evidence and became exhibit A. The defendant's duty 1. The defendant's duty under s 19(1) of the WHS Act was to 'ensure', so far as is reasonably practicable, the health and safety of workers, including Mr Bowden, Mr Bartlett, Mr Heffernan and Mr Brown, while they were at work in the business or undertaking. The risk 1. The risk was the risk of workers, in particular Mr Bowden, Mr Bartlett, Mr Heffernan and Mr Brown, suffering serious injury or death as a result of being struck by oncoming vehicles whilst undertaking the task of changeovers at the CCS. ELEMENTS OF THE OFFENCE 1. In relation to an offence contrary to s 32 of the WHS Act, the prosecution must prove beyond reasonable doubt that the defendant breached its duty as outlined in s 19 of the WHS Act, and must prove the elements of the offence as follows: 1. That the defendant was a person conducting a business or undertaking and was therefore required to comply with a health and safety duty; 2. That the defendant failed to ensure, so far as was reasonably practicable, health and safety; 3. That there were risk(s) to health and safety to workers at work in the business or undertaking; and 4. That the failure to ensure health and safety exposed a worker or workers at work to a risk of death, or serious injury, or serious illness. 1. The facts alleged by the prosecution are set out in detail in the Statement of Facts ('SOF') and the prosecution submits that the SOF is supported by the evidence in the PTB (PTB – exhibit A). Factual background The workplace and changeovers 1. As part of the business, SRL, SRL QLD and SRF required workers operating trucks to park at designated locations across Australia to 'swap trailers' with other workers, specifically by uncoupling the trailer attached to their truck and then coupling the other worker's trailer to their truck, before leaving the designated location (also known as conducting a 'changeover' and hereafter referred to as a 'changeover'). Further detail regarding the steps involved in the changeover process is set out at paragraph [10] of the SOF (See also tab – 18 – Record of Interview – Adam Bartlett pages 7–8). 2. SRL, SRL QLD and SRF designated Clybucca as an area in which changeovers were to take place. Previously SRL and its associated entities had directed workers to conduct changeovers at the BP service station. However, the service station ceased operations in or around May 2016 and workers began conducting changeovers on the shoulders of the road approximately 370 metres in length adjacent to the out-of-service service station (see tab 13 Factual Inspection Report at [2]). The defendant was aware of this practice and continued to direct workers to conduct changeovers at the CCS following the closure of the service station (SOF at paragraphs [12] to [14]). Approximately 140 changeovers per week would occur at the CCS prior to the incident. 3. I accept that the CCS was a workplace for the purposes of s 8 of the WHS Act. The posted speed limit at the site was 100 kilometres per hour (see tab 13 – Factual Inspection Report at [10]). The Incident on 6 July 2021 1. The facts the prosecution allege the Court would find in relation to the incident are set out in full at paragraphs [16] to [25] of the SOF. 2. Briefly, on 6 July 2021, Mr Bowden and Mr Bartlett were at work in the business conducted jointly by the defendant and its associated entities at the CCS for the purpose of conducting a changeover (see tab 37 – copy of Mr Bowden's drivers schedule for May to July 2021). 3. At that time, Mr Watts, who was approaching the CCS in his truck travelling in the northbound lane, was also at work in the business conducted jointly by the defendant and its associated entities for the purpose of conducting a changeover at a location north of the CCS (see tab 21 – Record of Interview – Colin Watts page 4). 4. At approximately 12:30am, Mr Bowden walked out into the northbound lane at the CCS during a changeover with Mr Bartlett. As he did so, Mr Bowden was struck by a truck being driven by Mr Watts at 74 or 75 kilometres per hour, (see tab 21 – Record of Interview – Colin Watts page 15). As a result of the collision, tragically, Mr Bowden died instantly. ANALYSIS OF THE ELEMENTS OF THE OFFENCE Element One - That the defendant was a person conducting a business or undertaking and therefore was required to comply with a health and safety duty 1. The defendant's business or undertaking involved the transport of temperature-controlled freight across Australia (see tab 65). The business was conducted jointly with two other entities and was a national based organisation (see tab 19 – evidence of Anthony Henderson, Chief Safety Officer of SRL). 2. The corporate structure of the defendant and its associated entities, SRL QLD and SRF is set out at paragraphs [2] to [5] of the SOF. 3. At the relevant time, SRL, SRL QLD and SRF were owned by an Australian-based private equity firm, Anchorage Capital Partners. Since 2018, the joint business was undertaken through a single transport management system, which consolidated SRL, SRL QLD and SRF's day-to-day processes of taking customer orders, consolidating those orders, and transporting freight. SRL was the parent entity and was responsible for delivering training (see tab 23). As at February 2022, the defendant had 1835 employees (see tab 65). 4. I am satisfied that SRL, being a corporation, was a person conducting a business or undertaking within the meaning of s 5 of the WHS Act (see tab 8). Element Two - That the defendant failed to ensure, so far as was reasonably practicable, health and safety 1. The risk of injury or death to pedestrians who are in close proximity to a moving vehicle is widely published (see paragraphs [29] to [32] of the SOF) and one the defendant ought to have foreseen. Indeed, the defendant in its response to a notice issued by SafeWork NSW recognised the risk when it stated by SRL in response to s 155 Notice at tab 65: 'The inherent risks of conducting Changeovers or experiencing breakdown at the roadside are self-evident and the need for vigilance is well-understood by the drivers.' 1. Given the area where the incident occurred was near oncoming traffic in a 100km speed zone, and the task workers were required to undertake involved working either on the road or very close to the road, it is reasonably foreseeable that workers may be exposed to the risk of being struck by a moving vehicle while conducting a changeover at the CCS. This is especially so in circumstances where there was no designated location or facilities for the task to be undertaken in this area, or procedure as to how to assess a safe site. The factors present at the CCS, outlined below at paragraph [38], demonstrate that it was inherently unsafe. This is amplified by the evidence of the drivers. For example, Victor Simone in his Record of Interview (tab 25) stated: 'There's no proper parking there. It's, it is a 100K an hour if not a 110K an hour speed zone. It's not the best lit place. And it's just like, changing over on the side of the road. It's not a, it's not safe spot.' 1. The prosecution submits there was a reasonably foreseeable risk to workers working on the side of the road in the vicinity of moving vehicles at the CCS. The risk became manifest when Mr Bowden was conducting a changeover in the vicinity of an oncoming vehicle. Systems of work prior to the incident Risk assessment 1. Prior to the incident, SRL had not conducted a risk assessment in respect of the task of conducting changeovers at the CCS (see tab 23 – Record of Interview – Steve Woodlands, and SRL response letter). Nor had it conducted a site inspection to identify hazards at the CCS (see tab 23 – Record of Interview – Steve Woodlands, and SRL's response letter). 2. SRL had conducted a risk assessment in respect of the operation of heavy vehicles, however, the risk assessment did not specifically consider the risks associated with: 1. the task of conducting changeovers; and 2. conducting changeovers at the CCS, or any other particular site. 1. Workers were aware of the risks posed by conducting changeovers at the CCS and had verbally reported those risks to the defendant. In February or March 2018, Mr Watts verbally informed a driver trainer employed by the defendant that he wanted to commence conducting changeovers at a different location to the CCS as it was too crowded. Following that conversation, Mr Watts commenced conducting changeovers at an alternative location (see tab 21 – Record of Interview – Colin Watts). At the time of the incident, Mr Watts was travelling to that location to conduct a changeover (see tab 21 – Record of Interview – Colin Watts). 2. In interviews with SafeWork NSW Inspectors, other workers reported safety concerns about the CCS, including that: 1. The condition of the road was poor; there was potholes, it was rough, and the shoulders were soft (see tab 18 – Record of Interview – Adam Bartlett); 2. There was little very room at the site to conduct a changeover (see tab 18 – Record of Interview – Adam Bartlett); 3. There was no safe area to pull over at the site (see tab 18 – Record of Interview – Adam Bartlett); 4. On the end of the CCS furthest away from the out-of-service BP station, the drivers would need to partially park on the sealed bitumen and partially on the dirt on the side of the road (see tab 17 – Record of Interview – Damien Heffernan and tab 11 – dashcam screenshots); 5. The lighting at the site was poor (see tab 21 – Record of Interview – Colin Watts and tab 30 – Record of Interview – James Brown); 6. During the changeover period, the site was extremely busy due to the number of trucks conducting changeovers in the area (see Watts video cam footage, which demonstrates that there appeared to be 11 trucks parked on either side of the road in the changeover area at the time of the incident); 7. Workers had to walk onto the road when entering and exiting their trucks as there was no space to walk on the shoulder when the truck was parked; 8. As there were no amenities at the CCS, workers often urinated on the side of the road (see tab 21 – Record of Interview – Colin Watts); and 9. The noise level at the site was high due to the traffic on the road, the engines of the trucks and the running noise of the refrigerated trailers. Often, workers had to yell to hear each other over the noise (see tab 18 – Record of Interview – Adam Bartlett). 1. I accept that these factors demonstrate that the CCS was not an appropriate location for drivers to undertake a changeover task safely. The evidence establishes that to undertake the changeover task, due to the lack of space, the drivers were effectively standing on the active lane of the road (see tab 21 – Record of Interview – Colin Watts, tab 25 – Record of Interview – Victor Simone and tab 27 – Record of Interview – Trevor Solomon). At times, this required drivers to have their backs to oncoming traffic (see tab 25 – Record of Interview – Victor Simone). 2. An inspection undertaken by Inspector O'Brien of the CCS on 17 December 2021 confirmed the statements made by the drivers regarding the inadequacy of the site for the task, particularly in terms of the space available (see tab 13). 3. The photographic evidence highlights the proximity of the parked trucks to the oncoming traffic where drivers were required to undertake the changeover task. The controls to unhook the trailer are on the driver's side behind the cabin and the process takes approximately 10 minutes. Other checks required walking around the vehicle to check tyres and the temperature of the refrigerated trailer. One of the drivers is required to cross the road to exchange paperwork with their changeover driver. This can either occur on foot, or via the driver doing a three-point turn in the 100km zone (see tabs 19, 21, 30 and photographs at tabs 11 and 12). Site-specific safe system of work 1. The system of work that was operating at the CCS prior to and at the time of the incident is outlined at paragraphs [37] to [42] of the SOF. Although SRL had both a 'SRL Driver Training & Awareness Program' and a 'SRL Driver's Guide' that dealt with the task of coupling and uncoupling trailers, these did not include any information on the hazard of working in proximity to other powered mobile plant or vehicular traffic at changeover locations, the risk of workers being struck by powered mobile plant and/or vehicular traffic, and the control measures to be implemented to eliminate or, alternatively, minimise the risk. This is contained in the 'SRL's Driver's Guide – Coupling and Uncoupling Procedure' at pages 82-83 behind tab 31 and at tab 32 which contains the 'Driver Training & Awareness Program Slides', at pages 36-37. 2. Further, prior to and at the time of the incident, SRL had a document titled 'AHG Refrigerated Logistics WHS Policy' to be delivered as part of the induction for workers of SRL, SRL QLD and SRF. The policy stated that 'AHG Refrigerated Logistics has prepared a Site Traffic Management Plan for each depot'. The AHG WHS Policy did not make any provision for the management of traffic at changeover locations (see tab 55 – AHG WHS Induction Course slides). Information, training and instruction 1. Although SRL trained and assessed drivers in relation to the task of coupling and uncoupling trailers, workers were not provided with any training on the hazard of working in close proximity to mobile plant and vehicular traffic when conducting changeovers, and the control measures to be implemented to eliminate or minimise the risk of workers being struck by mobile plant or vehicular traffic (see tab 18 – Record of Interview – Adam Bartlett, tab 21 – Record of Interview – Colin Watts, tab 23 – Record of Interview – Steve Woodlands, and SRL reply to s 155 Notice). 2. The information and training that was provided by SRL concerned the safety of the trailers and making sure they were secure, not worker's personal safety (see tab 18 – Record of Interview – Adam Bartlett). When asked how he determined a safe area to pull up at the CCS, Mr Bartlett stated, 'there's no real safe area to pull up' (see tab 18 – Record of Interview – Adam Bartlett). 3. This is also highlighted by the evidence of Mr Brown, a new SRL employee, who was undertaking the changeover at the CCS for the first time on the night of the incident (see tab 30 – Record of Interview – James Brown). Mr Brown said he 'felt really unsafe' at the changeover location (see tab 30 – Record of Interview – James Brown). When asked what training, information, or instruction he had prior to going to the CCS about the changeover task he responded (at tab 30 – Record of Interview – James Brown pages 8-9): '...I was just told that it was just along that road near the old highway and you just pull off on the side and do it there. As I said, I've never done it there before so I didn't know what I was walking into when I was driving there so when I got there I was a bit shocked at the-where it was.' High visibility clothing 1. SRL's various policies relating to the requirement for Linehaul Drivers to be provided with and wear high visibility clothing is outlined at paragraphs [45] to [48] of the SOF. 2. The evidence demonstrates that workers of SRL, SRL QLD and SRF complied to varying degrees with the requirement to wear approved high visibility vests at operational areas (see tab 21 – Record of Interview – Colin Watts and tab 23 – Record of Interview – Steve Woodlands). Some workers had not been provided with high visibility vests with reflective strips (see tab 30 – Record of Interview – James Brown). These workers either wore other forms of high visibility clothing (some of which did not have reflective strips) or did not wear any high visibility clothing in operational areas such as changeover locations. 3. Mr Bowden was not wearing a high visibility vest or shirt (see Deceased Person Exam Report). The defendant's failure 1. The prosecution submits that SRL failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Bowden, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if not reasonably practicable to eliminate, the risks to health and safety of workers (see paragraph 16(a)-(d) of the Summons): 1. Undertake an adequate site-specific risk assessment in relation to the task of conducting changeovers that identified powered mobile plant and/or vehicular traffic as a hazard, the associated risk of workers being struck by powered mobile plant and/or vehicular traffic during a changeover, and the control measures to be implemented and enforced to eliminate or minimize the risk (in particular those set out at subparagraphs 2(i) to (iv) below), taking into account the following: 1. The speed, volume and proximity of traffic in the location; 2. Lighting and visibility in the changeover location; 3. The condition of the surface of the changeover location; and 4. The size of the changeover location. 1. Develop, implement, and enforce a safe system of work for the task of conducting changeovers at changeover locations in proximity to powered mobile plant and/or vehicular traffic that was specific to the worksite and required: 1. An area for separation between workers undertaking changeovers and powered mobile plant and/or vehicular traffic; 2. Changeovers to be conducted in locations with adequate lighting; 3. Changeovers to be conducted in locations with adequate space for the task of uncoupling and coupling trailers; and 4. Workers to wear adequate high visibility clothing when conducting changeovers. 1. Provision of adequate information, training, and instructions in relation to the risks of being struck by powered mobile plant and/or vehicular traffic during changeovers, and the control measures to be implemented and enforced to eliminate the risk. 2. Ensuring workers were provided with adequate high visibility clothing and enforce the requirement for workers to wear adequate high visibility clothing at changeover locations. 1. There is nothing to suggest that the costs associated with the above available measures of eliminating and/or minimising the risk were grossly disproportionate to the risk of workers being seriously or fatally injured by being struck by oncoming vehicles whilst undertaking changeovers. 2. The prosecution submits, and I accept, that the omissions identified above were a substantial or significant cause of the risk that became manifest during the incident. Had adequate control measures been in place then the risk would have been eliminated, and had proper training and instructional material been provided the risk would have been minimised. Steps taken after the incident 1. There were clearly available and suitable ways to eliminate or minimise the risk, which is reflected in the measures in fact implemented by the defendant after the incident including ceasing changeovers occurring at the CCS and moving them to the Puma Service Station in Kempsey. 2. In September 2021, as part of its response to an Improvement Notice issued by SafeWork NSW following the incident, SRL developed a document titled 'Risk Assessment/Job Safety Analysis/Hazard Report Form' for the Linehaul Driver Changeover process and held two Linehaul Driver Toolbox calls to discuss road safety, use of changeover points, and the wearing of high visibility clothing (see tab 61 – Risk Assessment – NSW North Linehaul Driver Changeover Process, tab 62 – SRL Minimum Standard – Linehaul Driver Changeover and Linehaul Drivers Toolbox Talk – Teams Meeting). 3. After the incident, SRL updated the section titled 'Uniform Policy' in the SRL Driver's Guide to emphasise the importance of wearing high visibility clothing. The defendant also circulated a compliance communication to workers notifying them of the requirement to wear approved high visibility clothing at all sites including changeover points and rest stops. Element Three - That the risk(s) to health and safety were to workers at work in the business or undertaking 1. SRL, SRL QLD and SRF engaged workers to drive vehicles, including trucks fitted with trailers, to transport freight across Australia. 2. SRL employed Mr Watts, Mr Bartlett, Mr Heffernan, and Mr Brown as linehaul drivers to drive trucks fitted with trailers to transport freight. 3. The evidence establishes that Mr Watts, Mr Bartlett, Mr Brown, and Mr Heffernan were present at the CCS on the night of the incident (see tab 68 – COPS Report, page 2, and the Record of Interview with each of these workers). 4. From 1 July 2021, SRL QLD employed Mr Bowden in the position of a Casual Linehaul Driver. Mr Bowden was originally hired by SRL QLD on 7 August 2017 (see tab 65 – SRL's response to the s 155 Notice at questions 15 and 16 where it states that Mr Bowden was employed as a permanent changeover driver on a full-time basis. Mr Bowden's experience in changeovers is to be found at the response to questions 66 and 67, and his contract of employment at tab 36). The prosecution submits that Mr Bowden was a worker carrying out work for SRL QLD within the meaning of s 7 of the WHS Act. 5. Mr Bowden's activities in carrying out the work of transporting freight were influenced or directed by the defendant, in that the defendant, with SRL QLD and SRF, jointly directed the workers engaged by all three entities to undertake the work of transporting freight. As such, the prosecution submits it would be open for the Court to find that all the above workers, including Mr Bowden, were at work in the defendant's business or undertaking. 6. Section 7 of the WHS Act defines worker in broad terms as a person who carries out work in any capacity for a PCBU. The prosecution submits the Court would find Mr Bowden was a 'worker' who was carrying out work for the defendant on the basis that the defendant and its associated entities had a national system of work, and he was dispatched to undertake a changeover with an SRL driver. Mr Bowden's role required him to conduct a changeover with the Sydney driver (See tab 36). At tab 65, SRL's response to the s 155 Notice at questions 15 and 16 states: 'Darren started performing casual driving for Scott's RL on the Clybucca Changeovers on 5 February 2021'. The evidence demonstrates that SRL did not draw a distinction between the various associated entities, but rather treated itself as one organisation. 7. While Mr Bowden was the only worker who was fatally injured, the evidence demonstrates that all individuals using the CCS were at risk due to the unsafe work practices operating at the site on an ongoing basis. For example, Mr Bartlett stated that he had experienced his 'own personal near misses' ... 'just stepping down from the truck ...you think it's clear...' (see tab 18 – Record of Interview – Adam Bartlett). 8. The breach of duty encompasses more than simply the incident involving Mr Bowden. It was a systemic practice of the defendant to use the CCS on an ongoing basis and therefore all workers using that changeover site were continually at risk. 9. I accept that Mr Bowden was a worker for the purposes of s 7 of the WHS Act. Element Four – That the failure to ensure health and safety exposed a worker or workers at work to the risk of death, or serious injury, or serious illness 1. As a result of the defendant's failures, workers, including Mr Bowden, were exposed to a risk of death or serious injury. 2. The fatal injuries sustained by Mr Bowden on 6 July 2021 were a manifestation of the risk (see tab 70 – NSW Department of Health Verification of Death Certificate and tab 73 – Ambulance Consolidated Copy). Conclusion – liability 1. The prosecution submits there is sufficient evidence to satisfy each element of the offence beyond reasonable doubt and as such the Court should find the defendant guilty of the offence of failing to comply with its health and safety duty thereby exposing Mr Bowden and the other workers to a risk of death or serious injury contrary to ss 32 and 19(1) of the WHS Act. 2. I find that the prosecution has proved the elements of the offence beyond reasonable doubt. Therefore, the defendant is convicted. 3. I will now sentence the defendant in their absence, and note the prosecutor's submissions as to penalty. 4. The maximum penalty for the offence is $1,782,579.25, and I accept that the increase in the maximum penalty for this offence is an indication that the sentences imposed ought be increased. SENTENCING 1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. 2. The Court must have consideration for the objects of the WHS Act under s 3 in particular, that which is set out in sub-ss (e) and (f) ensuring the Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('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 (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [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 judgement without any attempt to state precisely how any given factor has influenced the judgement.' Objective seriousness of the offence 1. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…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 offending.' 1. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474–5. However, 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 [31]. 2. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). 3. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272. 4. 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 at [17]-[18] (Latham J). 5. The following matters are relevant to determining the culpability of the defendant: 1. The offending in this incident resulted in a fatality and represents a serious breach of SRL's health and safety duty; 2. The likelihood of the risk occurring given the conditions present at the workplace, and the lack of control measures in place was high; 3. The risk was foreseeable, glaringly so; 4. The risk was also known to SRL as it had been previously raised by workers citing safety concerns in conducting changeovers at the CCS; 5. The risk of being struck by mobile plant or vehicular traffic on the road is obvious and should and could have been readily anticipated by SRL. This was a fundamental part of SRL's business operations and there were many movements of heavy vehicles at the CCS; 6. Every time a changeover occurred at that location, it involved a driver being out of their truck on foot and potentially being close to other powered mobile plants and vehicular traffic which were routinely in the area; 7. Using the CCS as a location to conduct changeovers presented an obvious and ongoing hazard as the task could not be completed safely in that location; 8. There were simple, straightforward, and available steps which could, and should have been taken to avoid the risk. The risks of injury or death in these circumstances is widely published, and significant guidance material was available to SRL; 9. A risk assessment in relation to the task of the changeover and its location, in circumstances where workers had expressed concern as to the suitability of the site, would have revealed the risk and appropriate steps could have been taken; and 10. Whilst there were some systems in place prior to the incident, there were no adequate precautions at the time of the incident in relation to foreseeable collisions between pedestrians and powered mobile plant and/or vehicular traffic when conducting a changeover at the roadside. 1. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. Deterrence 1. In fixing a penalty in relation to these offences, 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 (Hungerford J). 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('Bulga') at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be 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 v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [74]–[75] which said: '[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. It can be appropriately used to direct the industry's attention to failing to ensure that when drivers have to perform the changeover task, it can be done in an appropriate location so as not to endanger the driver's health. It is a high-risk activity and that needs to be impressed upon those that require this manoeuvre from their workers. 2. 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 WHS Act very seriously. 3. 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 other factors. 4. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. In these circumstances, specific deterrence is less relevant as SRL's company group is in external administration. 5. Following the incident, SRL directed workers to begin conducting changeovers at the Puma Service Station at Kempsey, NSW. SRL also completed a risk assessment of the task of conducting changeovers, mandated the compliance of high visibility uniforms and conducted toolbox talks (see SOF at [51] to [53]). The changes and improvements made by SRL after the incident demonstrate a degree of commitment to safety. 6. I accept that the prospects of rehabilitation of the defendant are fair, and may not be relevant at all given the external administration. However, the need for an element of specific deterrence is still necessary in these circumstances. VICTIM IMPACT STATEMENT 1. Contained within the PTB was a Victim Impact Statement ('VIS') from Mr Bowden's partner, Caroline Szellemes. It was heartbreaking to read. 2. Mr Bowden and Ms Szellemes had been together for about two years prior to the accident, but Ms Szellemes describes them as 'the most life-changing two years' of her life, and that Mr Bowden was her future. Ms Szellemes has struggled seeing what her future may be without him. 3. Ms Szellemes sees a psychologist, a physiotherapist and a medical acupuncturist and various other therapies, which places an expensive burden on her limited finances. She has also been unable to work for extended periods and remains frustrated and angry. 4. Ms Szellemes misses Mr Bowden terribly, and states 'Not a day goes by when I don't think about him' and her health has been significantly impacted in a most negative way. 5. Immediately after the accident and at the funeral, Ms Szellemes felt very isolated and although she was supported by friends, she has had great difficulties coping with her grief and has lost some friends. This has caused her to withdraw when she struggles emotionally, and spends a lot of time alone. She suffers from acute anxiety, panic attacks, and depression, and has difficulty sleeping. She has been diagnosed with various conditions that she now takes medication for, and has put on weight that she had worked so hard to lose. 6. The loss of her partner, Mr Bowden, has had terrible effects on Ms Szellemes' financial circumstances, due to her lack of income and support. Ms Szellemes has also been involved in unnecessary and cruel interactions with Mr Bowden's family and she has had to be involved with lawyers as disputes about Mr Bowden's will continue. She is finding it very difficult to move on with her life when she is facing inconsistent employment and growing legal bills around Mr Bowden's estate. 7. On the last page of her statement, she states as follows: 'Being a widowed defacto partner and not a wife is not easy because it's often felt like I don't matter or people think I am just after my partners' money now that he is dead. It's humiliating to have to "prove" how much you meant to your partner when you are just trying to get through grief and life. It's hurtful to endure abusive messages and comments for merely existing and being loved deeply by the person who died.' 1. I am so grateful to have read the VIS prepared by Ms Szellemes and thank her for showing the strength to put such tragic and personal feelings on paper. I send my deepest condolences to Ms Szellemes and her sons Adam and Daniel and I dearly hope that the pain which they all suffer diminishes over time. Aggravating and mitigating factors 1. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.' 1. The aggravating factor that the injury and emotional harm caused by the offence was substantial. It resulted in the death of Mr Bowden. The offence resulted in both the creation of the risk and its materialisation. 2. Pursuant to s 27(2)(a) of the Sentencing Act, the prosecutor also relies on the VIS from Mr Bowden's partner, to which I referred in paragraphs [91] to [98]. 3. In addition, several of the drivers present at the time of the incident told SafeWork NSW about their own distress as a result of the experience (see tab 30 – Record of Interview – James Brown, tab 25 – Record of Interview – Victor Simone, tab 17 – Record of Interview – Damien Heffernan and tab 27 – Record of Interview – Trevor Solomon). 4. The defendant has not been subject to any prior convictions under work health and safety law (see exhibit B): s 21A(3)(e) of the Sentencing Act, which is a very good record given the inherently dangerous requirement for the changeover activities to be performed. 5. To the extent that it is relevant, I accept that the defendant has fair prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 6. Given the circumstances in which the defendant has not appeared and the liquidator is not involved in the proceedings, there is limited material before the court in relation to mitigating factors, apart from the steps taken after the incident. 7. As there has not been an appearance for SRL, and whilst the prosecutor refers to s 6 of the Fines Act 1996 (NSW), as there is no material before the court, nor an application for relief under the section, I will disregard the question of the offender's capacity to pay. 8. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ). 9. The Court is entitled to take into account the fact that SRL will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed, and I have done so. Costs payable to the prosecutor are the 'normal' rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. Penalty 1. I make the following orders: 1. The defendant is convicted. 2. The defendant is to pay a fine of $800,000.00. 3. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 4. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is 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: 22 March 2024