Citation: SafeWork NSW v Tolputt [2017] NSWDC 285
Court: District Court of New South Wales
Date: 1 September 2017
Judge: Kearns DCJ
Background
The defendant was a self-employed tree-climbing contractor and qualified Level 3 Arborist engaged by Bradshaw Tree Services Pty Ltd (BTS) to remove a large fallen tree from a residential property at Avoca Beach. The tree, approximately 17 metres tall, had fallen onto a house during a severe Central Coast storm in April 2015. BTS had prepared a Safety Analysis outlining a specific method for removing the tree using surrounding trees as lowering points to swing sections of the canopy away from the roof.
When the defendant arrived at the property on 1 June 2015, he formed the view that the BTS-planned method was not workable. Rather than contacting BTS or waiting for the site supervisor to arrive with the Safety Analysis, he devised his own method: climbing onto the roof, ascending into the tree, and lowering cut sections down using a rope and pulley system. Six workers, including five labour hire employees, ended up working on the roof alongside him.
While a substantial branch section was being lowered, it swung with greater force than expected and struck one worker, then struck a second worker who was knocked off balance. That second worker rolled toward the roof edge, went over it, and fell approximately 11 metres to the ground. He was fortunate to land in accumulated foliage that cushioned the impact. He sustained a fractured shoulder and psychological symptoms including flashbacks and disrupted sleep.
Legal Issues
- Whether the defendant breached his duty under section 28(b) of the Work Health and Safety Act 2011 by failing to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons
- Whether that breach constituted a Category 2 offence under section 32 of the Act, by exposing individuals to a risk of death or serious injury
- What penalty was appropriate, having regard to the objective seriousness of the offence, aggravating and mitigating factors, financial circumstances, and the defendant's early plea of guilty
Decision
The defendant pleaded guilty and was convicted of a Category 2 offence under section 32 of the Work Health and Safety Act 2011. The maximum penalty applicable to this case was $150,000. The court noted that a higher maximum of $300,000 applies where the offence is committed by an individual acting as a person conducting a business or undertaking, but that category had not been pleaded in the amended summons.
Kearns DCJ identified several aggravating factors. The defendant departed from the BTS Safety Analysis without consulting anyone, failed to wait for the site supervisor who held the only copy of that analysis, and proceeded with a method that placed multiple workers on a steep roof alongside heavy, swinging loads. Workers on the roof were exposed to two distinct risks: being struck by falling or swinging tree sections, and falling from the roof itself. The site supervisor's absence also meant no one with authority to direct work had assessed the defendant's revised approach.
Significant mitigating factors reduced the penalty considerably. The defendant had no prior relevant history, was a person of good character as evidenced by character references, and had shown genuine remorse. The court accepted that the incident had affected him deeply and that he had acknowledged his responsibility essentially from the outset. He was assessed as unlikely to reoffend and as having good prospects of rehabilitation.
The defendant's financial circumstances were also taken into account. Under section 6 of the Fines Act 1996, the court may consider a defendant's financial position when determining a fine. Evidence of the defendant's significant indebtedness, limited income, family obligations (a non-working spouse and five children with a sixth expected), and anticipated costs liability of approximately $24,000 all bore on the penalty. Together with a full discount for an early plea of guilty, the court imposed a fine of $20,000.
Orders Made
- The defendant was convicted and fined $20,000, with a moiety (half the fine) payable to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under section 28(b) of the Work Health and Safety Act 2011, a worker's duty to take reasonable care for the safety of others applies even where that worker is self-employed and is the most skilled person on site.
- Departing from a prepared work method without consultation, and commencing work before a site supervisor has arrived, can constitute a failure to meet that duty where other workers are thereby exposed to serious risk.
- The District Court confirmed that the Category 2 offence carrying a $300,000 maximum penalty (for individuals acting as a person conducting a business or undertaking) requires that characterisation to be explicitly pleaded; without such pleading, the $150,000 maximum applied.
- Financial hardship, assessed under section 6 of the Fines Act 1996, can substantially reduce the quantum of a fine below what the objective seriousness of the offence would otherwise indicate.
- An early and unequivocal plea of guilty, cooperative conduct during the investigation, genuine remorse, and good character collectively carried significant weight at sentencing, reducing the ultimate penalty to $20,000 from a maximum of $150,000.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 28(b), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 6
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37