Citation: SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
Court: District Court of New South Wales
Date: 15 May 2020
Judge: Russell SC DCJ
Background
The defendant, a roofing company, was engaged to replace the roof of a commercial building in Newcastle. On 8 March 2018, a site supervisor and an apprentice roof plumber were working together on the job. Neither worker had connected their safety harness to an available static line at the time of the incident.
During the work, the apprentice stepped onto an old, brittle polycarbonate skylight panel and fell through the roof, suffering injuries from which he later died. A static line was available on site, and both workers should have had their harnesses connected to it.
SafeWork NSW prosecuted the company under s 32 of the Work Health and Safety Act 2011 (NSW), alleging a Category 2 offence: that the company, as a person conducting a business or undertaking (PCBU), failed to comply with its health and safety duty and that failure exposed both the apprentice and the site supervisor to a risk of death or serious injury.
Legal Issues
- Whether the defendant was conducting a business or undertaking (Element 1)
- Whether the defendant owed a health and safety duty under s 19(1) of the WHS Act to the two workers (Element 2)
- Whether the defendant failed to comply with that duty, by failing to take the safety measures particularised in the prosecution's summons (Element 3)
- Whether that failure exposed the workers to a risk of death or serious injury (Element 4)
Decision
Elements 1 and 2 were formally admitted by the defendant's counsel. The company conceded it was a PCBU and that it owed a health and safety duty to both workers.
On Element 3, the court found the defendant had failed to comply with its duty. There was no risk assessment or revised Safe Work Method Statement (SWMS) prepared for the distinctly different task of removing the brittle skylight material, a task that presented hazards not covered by the original SWMS. The court also found that no adequate system existed to ensure workers used fall protection, and the company's director had previously observed workers on the roof without their harnesses connected yet took no action.
On Element 4, the court examined whether the failure exposed the workers to a risk of death or serious injury. Under the WHS Act, "risk" means the mere possibility of danger, not actual danger, and it is not necessary that an injury actually occurs. The court found that working on a roof without fall arrest or restraint systems, particularly near brittle skylight panels, plainly created such a risk.
The court rejected the defendant's argument that the supervisor's failure to follow safety procedures was unforeseeable. Authorities establish that employers must take steps to guard against worker complacency and non-compliance with safety procedures. The court also found that the supervisor's conduct fell within the scope of his employment and, by operation of s 244(1) of the WHS Act, was imputed to the corporate defendant. All four elements of the offence were proved beyond reasonable doubt.
Orders Made
- The elements of the offence set out in the Summons filed on 18 March 2019 were proved beyond reasonable doubt.
- Landmark Roofing Pty Limited was found guilty of the offence.
- The matter was listed for a sentence hearing on a date convenient to the parties.
Key Takeaways
- The District Court confirmed that a PCBU's duty under s 19(1) of the WHS Act requires the company to guarantee or make certain the health and safety of its workers, not merely take reasonable steps towards that end.
- Under s 32 of the WHS Act, the prosecution need not prove an injury occurred. The existence of a risk of death or serious injury, meaning the mere possibility of danger, is sufficient to establish the fourth element of a Category 2 offence.
- A failure to prepare a revised SWMS or conduct a risk assessment for a task materially different from the original scope of work was found to constitute a breach of the health and safety duty in this case.
- Where a supervisor fails to enforce safety procedures, that conduct may be imputed to the corporate employer under s 244(1) of the WHS Act, provided the supervisor was acting within the actual or apparent scope of employment.
- Employers must take active measures to guard against worker complacency and non-compliance with safety procedures. Evidence that a director had previously observed workers on a roof without harnesses, and had not intervened, was relevant to both the foreseeability of the risk and the company's failure to address it.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 32, 230, 244, 275
- Work Health and Safety Regulation 2017 (NSW), cll 291, 299
Cases
- Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
- Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373
- Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94
- WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166