Citation: Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 13 May 2021
Judges: Gleeson JA, Garling J, Cavanagh J
Background
The appellant was a roofing company engaged to repair storm-damaged roofing at an industrial site in Mayfield, NSW. On 8 March 2018, a 20-year-old first-year apprentice was working on the roof alongside his supervisor to replace skylights. Neither the apprentice nor the supervisor had connected their harnesses to any anchor point, and no safety mesh was installed beneath the work area, despite a static line and rope being available on the roof.
The apprentice stepped onto a brittle polycarbonate skylight panel, which cracked under his weight. He fell approximately six metres onto a crane rail inside the building, struck his head, and was left suspended upside down until rescued. He died nine days later.
In May 2020, the District Court convicted the appellant of failing to comply with its health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), an offence under section 32 of that Act. A fine of $400,000 was imposed in August 2020. The appellant appealed both conviction and sentence to the Court of Criminal Appeal on five grounds.
Legal Issues
- Whether the trial judge denied the appellant procedural fairness by rejecting prosecution witness evidence without hearing argument from the parties
- Whether the trial judge's finding that the managing director knew workers had been operating on the roof without being hooked up was against the evidence
- Whether the trial judge misconstrued section 244(1) of the Work Health and Safety Act 2011 (NSW)
- Whether the trial judge misdirected himself on the onus of proof by requiring the appellant to provide "sufficient" evidence of a defence
- Whether the trial judge erred in his assessment of the scope of the appellant's duty under section 19(1) with respect to three specific particulars of failure
Decision
Ground 1: Procedural fairness. The appellant argued that the trial judge had unfairly rejected prosecution witness evidence without giving the parties an opportunity to be heard. The Court of Criminal Appeal rejected this ground. Because no objection to the evidence had been raised at trial, the procedural fairness concern was assessed in that context, and the Court found the trial judge had not acted in a manner that denied the appellant a fair hearing.
Ground 2: Finding about the managing director's knowledge. The appellant challenged the trial judge's finding that the managing director, Mr Beacher, knew that workers had been operating on the roof without hooking up their harnesses, contrary to a direction he had issued. The Court of Criminal Appeal rejected this ground, finding no demonstrated error in that factual conclusion.
Ground 3: Construction of section 244(1). Section 244(1) of the WHS Act concerns the application of the Act's provisions. The Court rejected the appellant's argument that the trial judge had misconstrued this provision, finding the trial judge's approach was correct.
Grounds 4 and 5: Onus of proof and scope of duty. The Court rejected the argument that the trial judge had improperly shifted the onus of proof onto the appellant. The Court also found no error in the trial judge's treatment of the three contested particulars of failure, which concerned inspection of the work area, conducting a risk assessment, and related measures. The appeal was dismissed on all grounds.
Orders Made
- The appeal is dismissed.
- No order as to costs of the appeal proceedings.
- The costs order made at first instance in the District Court remains undisturbed.
Key Takeaways
- In dismissing all five grounds, the Court of Criminal Appeal confirmed that an appeal under section 5AA of the Criminal Appeal Act 1912 (NSW) requires the appellant to demonstrate an error of law or a wrong principle applied in the fact-finding exercise; it is not a rehearing.
- A procedural fairness complaint arising from a trial judge's rejection of witness evidence is assessed against the full trial context, including whether the affected party had itself raised any objection or sought to be heard at the relevant time.
- Under section 19(1) of the WHS Act, a company conducting a business or undertaking bears a duty to ensure, so far as is reasonably practicable, the health and safety of its workers. That duty was found to extend to the specific failures alleged, including inspecting the work area and conducting a task-specific risk assessment before the skylight replacement work began.
- Sufficient evidence existed at trial to support the finding that the managing director had actual knowledge that workers were operating on the roof without securing their harnesses, notwithstanding a standing direction to the contrary.
- By operation of section 5AA(4)(b)(ii) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal now has a discretion to order a new trial where an appealable error would have made a material difference to the outcome, though no such order was warranted here.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 244(1)
- Criminal Appeal Act 1912 (NSW), s 5AA
- Criminal Procedure Act 1986 (NSW)
- Occupational Health and Safety Act 1983 (NSW)
Cases
- SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202 (conviction at first instance)
- SafeWork NSW v Landmark Roofing Pty Ltd (No 2) [2020] NSWDC 420 (sentence at first instance)
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
- Browne v Dunn (1893) 6 R 67
- MWJ v The Queen [2005] HCA 74
- Parker v DPP (1992) 28 NSWLR 282
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Tweedie v R [2015] NSWCCA 71
- Day v SAS Trustee Corporation [2021] NSWCA 71
- Hamod v State of New South Wales [2011] NSWCA 375
- Ali v Nationwide News Pty Ltd [2008] NSWCA 183
- Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60
- New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
- Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351
- WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166; [2004] NSWIRComm 207