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

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

The defendants each breached their work health and safety duty by failing to eliminate or minimise the foreseeable risk that workers could suffer death or serious injury from an uncontrolled release of stored energy in the pressurised piping system. Reasonably practicable measures were available, including a Safety in Design process, avoiding compressed air, ensuring welds could withstand operational forces, and preparing an adequate Safe Work Method Statement. However, because the system had been assessed as low risk, used proprietary products certified as compliant with applicable Australian Standards, reflected accepted industry practice, and had not previously caused such problems,...

Jurisdiction
Australia
Judgment Date
09 October 2020
Procedural Posture
Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty
Outcome
Both defendants were convicted and fined after guilty pleas.
Legal Topics
['duty of Persons Undertaking Business' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Undertaking Business' 'failure to Comply With Work Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offences / Sentence After Pleas of Guilty

Legal Issues

  1. 1 ['What penalty should be imposed on Lendlease Engineering Pty Limited for failing to comply with its work health and safety duty contrary to s 32 of the Work Health and Safety Act 2011 (NSW).' 'What penalty should be imposed on Bouygues Construction Australia Pty Limited for failing to comply with its work health and safety duty contrary to s 32 of the Work Health and Safety Act 2011 (NSW).' 'Where the offences fell in the range of objective seriousness having regard to the foreseeable risk of death or serious injury from uncontrolled release of stored energy in the pressurised piping system.' 'Whether parity required the same penalty for both defendants.' 'Whether mitigating factors, including guilty pleas, remorse, cooperation, good character, low risk of reoffending and rehabilitation, affected the penalty.']

Ratio Decidendi

The defendants each breached their work health and safety duty by failing to eliminate or minimise the foreseeable risk that workers could suffer death or serious injury from an uncontrolled release of stored energy in the pressurised piping system. Reasonably practicable measures were available, including a Safety in Design process, avoiding compressed air, ensuring welds could withstand operational forces, and preparing an adequate Safe Work Method Statement. However, because the system had been assessed as low risk, used proprietary products certified as compliant with applicable Australian Standards, reflected accepted industry practice, and had not previously caused such problems,...

Court Disposition

Both defendants were convicted and fined after guilty pleas.

Orders

  • ['Lendlease Engineering Pty Limited was convicted on 2 October 2020.' 'The appropriate fine for Lendlease Engineering Pty Limited is $500,000 but that will be reduced by 25% to reflect the plea of guilty.' 'Lendlease Engineering Pty Limited is ordered to pay a fine of $375,000.' 'Pursuant to Section 122(2) of the...