SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343
On 31 August 2023 Murray Constructions Pty Ltd were before Judge Russell charged with an offence against Section 32 of the WHS Act (often referred to as a Section 19/32 prosecution). The maximum penalty for this offence is $1,766,130. During proceedings they (Murray's) were represented by Victorian Barrister Robert O'Neill. The prosecutor used Barrister Peter Gow as the prosecutor.
Overview of the company
Murray’s designs and constructs major civil projects (primarily bridge construction works) and is involved in the manufacture of prestressed and precast concrete, and general transportation. It could best be summed up as the business has a Transportation (trucking etc.) branch, a civil construction branch and a fabrication/manufacturing branch. This offence pertained to their civil construction and transportation branch.
Murray's is based in Deniliquin in NSW (about a 3 hour drive west of Wagga Wagga or 7.5 hour drive southwest of Sydney) and operates within regional New South Wales and Victoria.
Murray's was engaged by Warren Shire Council to replace the existing bridge known as “Wonbobbie Road Bridge” over Marthaguy Creek, Tenandra (about 25km north-east of Warren). Near this area was a construction bypass track and storage area (the site). Murray's had quoted $694,651.08 for this job.
Relevant employees involved in this incident - Murray's employed Mr Brian Taylor, who was 70 years old at the time of the incident, as a truck driver and labourer. His duties were to load, transport and unload precast bridge componentry and material to sites. Mr Taylor commenced employment with Murray on 22 June 2015. Murray's also employed Mr Sandy Norris as a site supervisor and crane driver and Mr Brody Street as a labourer.
What Happened?
On 25 September 2020 it was decided by Murray's to send an excavator sieve bucket (the bucket) from Murray’s precast yard in Deniliquin (the Deniliquin yard) to the site in Tenandra. The bucket was 1.3m long x 1.05m high x 800mm deep and weighed 795kg. It had an 80mm deep pin hitch at the base making it heavier on one side.
Mr Allan Davies would be driving a truck holding a large concrete bridge beam (the beam) to the site and it was decided to place the bucket on top of the beam. The beam was 23m long x 700mm deep x 600mm wide and had reinforcing steel protruding out of the top. Murray employees used a telehandler to lift the bucket onto the bars protruding from the top of the beam. They then used synthetic straps to secure the bucket to the top of the beam. During the trip to the site both straps were damaged by the edge of the beam. Mr Davies replaced the damaged straps with chains.
Due to adverse road conditions, the load was left on the trailer for approximately 3 days, it was then transported to the site on 28 September 2023. The load had appeared to have moved significantly during the trip.
The three workers began undoing the tie down chains securing the load. Mr Norris identified that the bucket was heavier on the passenger side and at risk of falling when the chains were undone. He yelled out to the others to stop undoing the chains until they had secured a sling from the crane to the bucket.
Both men stopped undoing the chains. Mr Norris got into the crane, slewed the boom around and positioned the crane hook and sling over the bucket. However, one of the securing chains had already been released, meaning there was only one chain securing the bucket to the beam. Mr Street put on his hard hat at Mr Norris’ direction and climbed onto the beam to sling up the bucket using a D shackle.
Mr Taylor was not in Mr Street’s line of sight. Before Mr Street could put the pin in the D shackle all the tension on the one remaining securing chain released and the bucket fell 2.4m from the passenger side of the trailer to the ground.
The bucket crushed Mr Taylor against the concrete beam that was on the ground beside the trailer. His upper body was pinned, and he was bent forward over the beam with the bucket pressing against his back.
As the bucket fell, it also hit Mr Street on the hip and pushed him off the beam to the ground. An ambulance arrived at the scene at about 5.45pm. NSW Ambulance Paramedics confirmed that Mr Taylor had died after performing an initial assessment and an ECG.
Post-mortem radiology revealed extensive crush injuries to his chest and spine.
Mr Street suffered soft tissue injuries to his hip and buttocks and post-traumatic stress disorder (PTSD). Mr Street was unable to work for about three months on account of the PTSD and later recommenced full-time work on selected duties.
The Failings of Murray Constructions Pty Ltd
There were no systems in place to prevent persons falling from the beam while slinging the bucket to the hook of the crane.
There was no requirement that unstable loads, such as the bucket in this case, were to be secured to a crane before securing chains were released. The Unloading SWMS written by Murray's did not stipulate this.
The Crane SWMS identified the potential hazard of falling loads and crushing injury and requires that, “Loads [are] not to be lifted over personnel. All personnel except dogman/rigger to keep clear until load positioned” - despite this the workplace clearly did not adhere to their own policies as workers did not ensure that persons were out of the path of the load.
Murray's did not show remorse for the offending.
It was known to Murray that Mr Street did not hold a dogging licence as required by:
Its own SWMS for Working at Heights
Work Health and Safety Act 2011 (NSW), s 43.
Work Health and Safety Regulation 2017 (NSW), cl 81.
Work Health and Safety Regulation 2017 (NSW), cl 85.
Work Health and Safety Regulation 2017 (NSW), Schedule 3 and Schedule 4
Mitigating factors
Murray held a toolbox meeting just shy of 2 months after the incident in the Deniliquin yard in relation to loading and unloading trucks. The workers were instructed by Mr Jeremy Murray (a director of Murray) to make sure the crane is connected to the load before releasing the chains that are securing the load. All workers associated with loading and unloading operations were instructed to be in sight of the operator or otherwise out of the exclusion zone.
Murray has a full-time Quality Safety and Environment (QSE) officer who manages its safety systems and provides or organises safety training (currently Ms Margaret Byer - at the time of the offending it was Mr Craig McDonald). It should be noted Mr McDonald was removed/resigned from his position immediately following the incident.
Murray's runs daily toolbox talks (most in construction run weekly)
Immediately upon learning of the incident, Mr Murray (current Managing Director) advised the workers to do everything right (i.e. Call an ambulance etc.) and packed a bag, collected his father (founder of the company) and they headed straight for the site to check on the welfare of their workers. They travelled through the night and did not arrive in town until 12:30 am (Why this took so long I can only guess) Immediately upon arriving in town they went to the police station, no one was present so they tried the site where there was also no one present. At that time they went to the motel staff were staying at. They spoke to Mr Norris and assured him that they would provide him and Mr Street with any support they required.
Mr Murray and his father returned to the site but again there was no one there. Later that morning Mr Murray’s father drove Mr Norris and Mr Street home.
Mr Murray stayed in town and met with Inspector Kevin Pile from SafeWork to discuss the incident and do a walkthrough of the site. Thereafter Murray's was issued with a Non-Disturbance Notice and an Improvement Notice.
Following the incident Murray's coordinated a group counselling session for all workers and encouraged workers to seek private sessions with the counsellor.
Mr Murray accepted responsibility for not documenting the requirement that loads be supported by plant prior to releasing the load restraint devices and for not requiring Mr Street to have a dogging licence.
Murray's has no prior convictions. This is an impressive record given the length of time it has been in business in a heavy and potentially dangerous industry. Additionally Murray's co-operated fully with investigators, plead guilty immediately and showed good character with their actions following the incident.
To put it simply, there are almost twice as many mitigating factors as litigating. Had this of been an injury or near miss, I even believe SafeWork would not have prosecuted them beyond a PIN (for unlicenced work and failure of systems) as this does genuinely appear to be a company that has tried to do everything right. But the offence is objectively serious as it resulted in the death of a person that it would be inappropriate to not prosecute them.
It does appear that Judge's Strathdee and Russell (who are 2/3 of the judges that primarily deal with WHS Criminal prosecutions in NSW) start at the maximum penalty and work their way down based on the facts. This may go towards explaining why the company was only fined about 33% of the maximum.
Hopefully this case demonstrates the importance of;
Ensuring your policies (including SWMS) are strictly adhered to onsite, and;
Ensuring anyone performing high risk work is licenced.