Citation: Safe Work NSW v Christopher Michael Butler; Safe Work NSW v Edgesafe Pty Ltd [2018] NSWDC 60
Court: District Court of New South Wales
Date: 26 March 2018
Judge: Judge AC Scotting
Background
Edgesafe Pty Ltd was a business specialising in the supply and installation of temporary edge protection and fall prevention systems for the building industry. Its sole director, Christopher Michael Butler, was personally involved in day-to-day operations, including work health and safety matters. In January 2015, Edgesafe was engaged to install a temporary guardrail system along the roof edges of a commercial building at Riverwood, New South Wales.
The installation used a "fascia fix" method, securing steel mounting plates to existing metal roof purlins with self-drilling screws. Expert analysis conducted after the incident found that the screws had been blunted during installation and did not sufficiently engage with the purlins. No handover certificate confirming compliance with the relevant Australian Standard was provided, and the edge protection was not independently tested to verify it could withstand the load of a person falling against it.
On 8 January 2015, an experienced roofer engaged by the principal contractor placed his hand on the guardrail adjacent to one section of the roof. The railing separated from the purlin and he fell five metres to the ground. He suffered serious injuries including cervical and lumbar fractures, bilateral wrist fractures, a bowel tear, and a laceration to his spleen. He has been unable to return to his pre-injury employment.
Legal Issues
- Whether Edgesafe, as the installer of plant or structure used at a workplace, had breached its health and safety duty under section 26(2) of the Work Health and Safety Act 2011 (WHS Act) in a manner that exposed the worker to a risk of death or serious injury, contrary to section 32.
- Whether Mr Butler, as an officer of Edgesafe, had similarly breached his duty under section 27(1) of the WHS Act in a manner exposing the worker to that same risk.
- What penalties were appropriate, having regard to objective seriousness, mitigating and aggravating factors, the guilty pleas entered, the offenders' capacity to pay, and the principles of parity and totality.
Decision
Both Edgesafe and Mr Butler pleaded guilty. The court proceeded to sentence on the basis of agreed facts. The maximum penalty available for Edgesafe was a fine of $1.5 million; for Mr Butler, $300,000.
The court assessed the objective seriousness of the offences. A worker suffered grave, life-altering injuries as a direct result of the failures in the installation. The edge protection system had not been tested against the applicable Australian Standard, no handover certificate was issued, the on-site training was informal, and the SWMS requirements were not adequately implemented. These were identifiable and foreseeable failures.
On mitigating factors, the court accepted the guilty pleas, noting they attracted a 10 per cent discount. The court also took into account that both offenders demonstrated some remorse, that Edgesafe had changed its practices following the incident, and that neither had prior convictions. The court was satisfied, despite gaps in the financial evidence presented, that both Edgesafe and Mr Butler had a limited capacity to pay. It also noted that both offenders would face prosecution costs that were likely to be substantial, given the matter had been listed for hearing and involved expert evidence.
The court set a starting point of $250,000 for Edgesafe and $30,000 for Mr Butler, applied the 10 per cent guilty plea discount, and then exercised its discretion to further reduce both fines to account for limited capacity to pay. The final fines imposed were $75,000 for Edgesafe and $5,500 for Mr Butler.
Orders Made
- Edgesafe Pty Ltd convicted and fined $75,000.
- Fifty per cent of Edgesafe's fine ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- Edgesafe ordered to pay the prosecutor's costs as agreed or assessed.
- Christopher Michael Butler convicted and fined $5,500.
- Fifty per cent of Mr Butler's fine ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- Mr Butler ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under section 32 of the WHS Act, both a corporate installer of plant or structure and its officer can each be convicted and sentenced for separate breaches arising from the same incident, with the officer's liability flowing from section 27(1).
- A limited capacity to pay is a relevant but not decisive consideration in WHS sentencing. The District Court confirmed that a substantial fine may still be warranted by the seriousness of the offence and the need for general deterrence, but exercised its discretion here to reduce both fines significantly below the post-discount starting points.
- Where an offender seeks a reduction in fine on grounds of limited capacity to pay, the evidentiary onus rests on the offender to satisfy the court, even though that onus was met here despite some gaps in the financial evidence.
- Anticipated prosecution costs, particularly where a matter was listed for hearing and involved expert evidence, formed part of the overall sentencing picture and were taken into account when calibrating the final fines.
- Failures to comply with an applicable Australian Standard, to issue a handover certificate, and to conduct independent load testing of an edge protection system were central to the court's assessment of objective seriousness, even where experienced workers were deployed on site.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 26(2), 27(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(3)(e), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Environmental Protection Agency v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412