AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 7 August 2020

Safework NSW v Landmark Roofing Pty Ltd (No. 2)

[2020] NSWDC 420

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: Safework NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420
Court: District Court of NSW
Date: 7 August 2020
Judge(s): Russell SC DCJ

Background

An apprentice roof plumber died after falling through a brittle polycarbonate skylight while working on the re-roofing of a commercial building in Newcastle in March 2018. At the time of the incident, neither he nor the site supervisor had a fall arrest or restraint system connected, despite a static line being available on site. Both workers should have had their safety harnesses attached to that line.

The employer, a roofing company that had operated for 16 years and completed an average of 70 jobs per year, was prosecuted by SafeWork NSW. Following a five-day trial, the District Court found the company guilty of failing to comply with its work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, contrary to s 32 of the Act. This judgment dealt with sentencing.

The company's sole director gave affidavit evidence describing his remorse, the company's previously clean safety record, steps taken after the incident to improve safety practices, and its community and charitable contributions. Victim impact statements were provided by the deceased's mother and father, who described the devastating and ongoing impact of his death.

  • What was the appropriate fine, having regard to the objective seriousness of the offence, mitigating and aggravating factors, and the purposes of sentencing?
  • What was the company's capacity to pay, and how should that bear on the quantum of the fine?
  • Whether a work health and safety project order should be made requiring the company to fund the production of an animated educational video about the incident.
  • Whether prosecution costs should be ordered.

Decision

The court assessed the objective seriousness of the offence in light of the maximum penalty of $1,500,000. The risk was both foreseeable and preventable: a static line was already on site, and the workers simply had not connected their harnesses to it. The court weighed this against mitigating factors, including the company's previously unblemished work health and safety record, its full cooperation with the SafeWork NSW investigation, the genuine remorse expressed by the director, and remedial steps taken after the incident.

The court also took into account the company's financial position and its capacity to pay the fine. A complicating factor was correspondence from the Australian Building and Construction Commission (ABCC) indicating that the prosecution could trigger an inquiry, with the potential outcome that the company would be barred from tendering for Commonwealth-funded work. Given that such work represented between 50% and 70% of the company's revenue, this consequence carried significant financial weight in the sentencing calculus.

The court declined to make a work health and safety project order requiring the company to fund an animated educational video. The court found no evidence that such videos had utility for the broader industrial community, observed that any such production was more appropriately a function of SafeWork NSW itself, and noted that the company was not a recidivist and had a good prior safety record. The court suggested that a press release summarising the case's key findings would be a faster and more cost-effective means of communicating lessons to the industry.

The court imposed a fine of $400,000, ordered that 50% of that amount be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996, and directed that the company pay the prosecutor's costs.

Orders Made

  • Landmark Roofing Pty Ltd convicted of failing to comply with its work health and safety duty contrary to s 32 of the Work Health and Safety Act 2011 (NSW).
  • The Victim Impact Statements of Ms Maryann Bradley-Asser and Mr Dale Asser taken into account.
  • Landmark Roofing Pty Ltd ordered to pay a fine of $400,000.
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor.
  • Landmark Roofing Pty Ltd ordered to pay the prosecutor's costs.

Key Takeaways

  • The District Court confirmed that the availability of adequate safety equipment on site, left unused, is a significant factor in assessing the objective seriousness of a work health and safety offence resulting in death.
  • A previously clean safety record, full cooperation with investigators, genuine remorse, and post-incident remediation are recognised mitigating factors in WHS sentencing, though they do not displace the need for meaningful general and specific deterrence.
  • Potential regulatory consequences beyond the fine itself, such as exclusion from government procurement through an ABCC sanction, can bear on the sentencing court's assessment of a defendant company's overall exposure and capacity to pay.
  • Refusing the project order, the court held that a s 238 work health and safety project order is not appropriate merely to reinforce obligations on a defendant with a good prior record; such orders are directed at recidivists or cases where additional corrective action is needed.
  • Under s 122(2) of the Fines Act 1996, the court has power to direct that a proportion of a fine be paid to the prosecuting authority, and did so here by directing that half the fine be paid to SafeWork NSW.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 27, 28, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122

Cases
- Safework NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202 (primary liability judgment)
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432