Citation: SafeWork NSW v United Roof Tiling Pty Ltd [2017] NSWDC 14
Court: District Court of New South Wales
Date: 14 February 2017
Judge: Kearns DCJ
Background
A roofing contractor was engaged to supply and install concrete roof tiles at a residential duplex under construction in Greenacre. The company's sole director attended the site on the morning of 14 May 2014 and noted that the awning frame over the front balcony was inadequately propped. He requested the problem be addressed but left the site before it was resolved.
Later that afternoon, the awning gave way while tilers were standing on it approximately seven metres above ground. One worker fell two storeys and sustained serious fractures to his pelvis and left arm, requiring two surgeries and an extended hospital stay. Two other workers fell but landed on the first floor balcony without injury. The injured worker has not returned to work.
SafeWork NSW prosecuted the company under s 32 of the Work Health and Safety Act 2011 for failing to comply with its primary duty of care under s 19(1). The company pleaded guilty. The proceeding before Kearns DCJ was a sentencing hearing.
Legal Issues
- How serious was the offence, having regard to foreseeability of risk, foreseeability of consequences, and availability of preventive measures?
- What weight should be given to general and specific deterrence in the penalty?
- What discount, if any, applied to the guilty plea given the timing of its entry?
- Whether costs payable by the defendant to the prosecutor could be taken into account in fixing the fine.
- Whether dismissal of the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999 was appropriate.
- Whether the parity principle had any application where only one defendant was being sentenced.
Decision
Gravity of the offence. Kearns DCJ found the offence was serious. The risk of falls from roofs and construction sites was plainly foreseeable, as were the potential consequences. Measures to address the risk were readily available and were, in fact, identified in the company's own Safe Work Method Statement (SWMS). The company failed to follow its own SWMS in multiple respects: no safety rails, harnesses, or nets were provided, the scaffolding was non-compliant, and the awning was inadequately supported at the time of the incident.
Deterrence. Both general and specific deterrence warranted a meaningful penalty. Falls on construction sites remain a persistent problem in the industry, reinforcing the need for a general deterrence component. Specific deterrence was heightened by the fact that the director had personally identified the unsupported awning as a hazard that same morning, left without confirming it was rectified, and the company had its own SWMS that it simply did not follow.
Guilty plea discount and related matters. The company entered its guilty plea on the seventh occasion the matter was listed, and the court allowed a 20% discount rather than the maximum available, reflecting the delayed timing of the plea. The court accepted that remorse was genuine, supported by the company's post-incident assistance to the injured worker (including providing a vehicle and financial support), and noted the company had no prior convictions and had operated since 2004. The $19,000 agreed costs payable to the prosecutor were taken into account, but only to a minor degree.
Section 10 dismissal and parity. The court rejected the application for a s 10 dismissal (which would have seen the charge dismissed without conviction). The offence was not trivial: it carried potential fatal consequences, exposed multiple workers to risk, and the director was personally aware of the hazard before leaving the site. The parity argument, based on the owner/builder bearing greater responsibility, was dismissed on the basis that there was only one defendant before the court and no comparable sentence existed against which parity could be assessed.
Penalty. Kearns DCJ assessed the appropriate pre-discount fine at $150,000, arriving at a final figure of $120,000 after the 20% guilty plea discount. The maximum penalty for the offence was $1,500,000, reserved for the most extreme cases.
Orders Made
- The defendant is convicted and fined $120,000, with a moiety (half the fine) to the prosecutor.
- The defendant is to pay the prosecutor's costs in the sum of $19,000.
Key Takeaways
- A company's failure to follow its own SWMS is a significant aggravating feature in WHS sentencing, particularly where the relevant hazard was actively identified by the company's controlling mind on the day of the incident.
- Under s 10 of the Crimes (Sentencing Procedure) Act 1999, dismissal of a WHS charge without conviction is inappropriate where the offence carried potentially fatal consequences, multiple workers were exposed to risk, and no extenuating circumstances existed.
- The parity principle in sentencing has no application where only one entity is before the court for sentencing, even if another party may have shared responsibility for the circumstances of the offence.
- Costs agreed to be paid by a defendant to the prosecutor may, in appropriate cases, be taken into account when fixing a fine, though the District Court treated this as a minor consideration only.
- A delayed guilty plea attracts a reduced discount: here, the court applied 20% rather than the maximum available, reflecting that the plea was not entered until the seventh listing of the matter.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cls 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 21A
- Fines Act 1996 (NSW)
Standards and Codes:
- AS/NZS 4576 (Scaffolding Guidelines)
- AS/NZS 1576 (Scaffolding Standards)
- SafeWork Australia Code of Practice: "Preventing Falls in Housing Construction"
Cases cited: No specific cases were cited in the portions of the judgment provided.