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District Court 12 February 2018

SafeWork NSW v Powell

[2018] NSWDC 104

Other
CRIMINAL LAW WORK HEALTH AND SAFETY TREE REMOVAL LABOUR HIRE AGGRAVATING AND MITIGATING FACTORS RELIEF UNDER FINES ACT

Citation: SafeWork NSW v Powell [2018] NSWDC 104
Court: District Court of New South Wales
Date: 12 February 2018
Judge: Kearns DCJ

Background

The defendant was the sole director and shareholder of a labour hire company (referred to here as IMS) that supplied ground workers to a tree removal job at a residential property in Avoca Beach on 1 June 2015. A large tree had partially fallen onto the house following severe storms on the Central Coast. A separate company, Bradshaw Tree Services (BTS), had contracted for the removal and engaged a self-employed tree climbing contractor, while IMS supplied five ground workers.

On the morning of the job, the defendant collected safety equipment and a copy of the BTS Safety Analysis from the BTS director and set out for the site. He was diverted to another emergency, leaving him absent when work commenced. He told the BTS employee at the site that he would be late but gave no instruction to wait or to hold off starting. The Safety Analysis remained with him and was never seen by anyone on site.

Without a competent supervisor present, workers climbed onto the roof to assist with the removal. A section of the tree struck one worker, knocking another off balance. That second worker rolled to the roof's edge, fell approximately 11 metres, and was caught by a mass of foliage below. He sustained a fractured shoulder and ongoing psychological effects including flashbacks and disrupted sleep.

  • Whether the defendant, as an officer of the PCBU (IMS), failed to exercise due diligence under s 27 of the Work Health and Safety Act 2011, thereby committing an offence under s 32 of that Act
  • What penalty was appropriate, having regard to the objective seriousness of the offence, the relevant aggravating and mitigating factors, the defendant's financial circumstances, and the availability of relief under the Fines Act 1996
  • Whether the outcome should be broadly consistent with the sentence imposed on a co-defendant (Mr Tolputt) in related proceedings

Decision

The defendant pleaded guilty. Kearns DCJ found that the prosecution established each of the four pleaded particulars of failure. The defendant had not ensured a competent person was present before work began, had not provided a site supervisor with the requisite competence, had supplied workers who lacked training and experience in tree work, and had put in place no process to prevent ground workers from moving onto the roof.

The risk was plainly foreseeable on two levels: injury from swinging timber and falling from the roof were obvious hazards, and the consequences of such risks materialising were equally apparent. His Honour drew on the same foreseeability analysis applied in the related Tolputt proceedings.

On penalty, the court weighed the objective seriousness of the offence against significant mitigating factors. These included the guilty plea, the defendant's genuine remorse, his financial hardship (which had been substantially caused by the fallout from the incident itself, including the collapse of IMS), and his personal circumstances as a father of three children supporting them on a modest income.

His Honour noted that while the defendant's maximum penalty of $300,000 was double that applying to Mr Tolputt (whose maximum was $150,000), a doubling of the actual fine did not necessarily follow. Taking into account the plea discount, the mitigating factors, and the Fines Act analysis, the court imposed a fine of $20,000.

Orders Made

  • The defendant was convicted of an offence under s 32 of the Work Health and Safety Act 2011
  • The defendant was fined $20,000, with a moiety payable to the prosecutor under s 122 of the Fines Act 1996
  • The defendant was ordered to pay the prosecutor's agreed costs of $17,500

Key Takeaways

  • An officer of a PCBU can be convicted under s 32 of the WHS Act where the officer fails to exercise due diligence to ensure the PCBU meets its obligations, even where the officer's absence from the worksite was not itself blameworthy
  • Failure to ensure a competent supervisor was present, failure to ensure workers were adequately trained, and failure to ensure safety documentation reached the worksite each constituted separately established particulars of the due diligence failure
  • Where a defendant's financial hardship was materially caused by the incident giving rise to the prosecution, that hardship can operate as a genuine mitigating factor on penalty
  • A higher maximum penalty applicable to one co-offender compared to another does not automatically result in a proportionally higher actual fine; the court treats the differential as a relevant consideration rather than a fixed multiplier
  • Under s 27 of the WHS Act, due diligence obligations for officers include ensuring competent persons are nominated and present before work begins, consistent with applicable codes of practice such as the Tree Code and the Falls Code

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 27, 32
- Fines Act 1996 (NSW), ss 122

Cases:
- SafeWork NSW v Tolputt [2017] NSWDC 285

Codes of Practice:
- Code of Practice for the Amenity Tree Industry (August 1998)
- Managing the Risk of Falls at Workplace Code of Practice (approved 16 December 2011)