Citation: SafeWork NSW v PV Solar Pro Pty Ltd [2021] NSWDC 258
Court: District Court of New South Wales
Date: 18 June 2021
Judge: Scotting DCJ
Background
PV Solar Pro Pty Ltd, a company that installed solar panels on residential and commercial buildings, was engaged to install a 35kW solar system on two adjacent warehouses at a site in Tomago, NSW. On 23 August 2018, a 19-year-old first-year electrical apprentice, Jaryd Hayter, fell approximately 6.5 metres through a skylight on the warehouse roof while measuring and cutting mounting rail. He suffered severe traumatic brain injuries and died on 5 September 2018, after life support was withdrawn.
Despite two site inspections conducted in May 2018, the skylights on the roof had not been identified as a hazard in PV Solar's risk assessment documents. On the day of the incident, cones were placed over skylights and workers were directed to remain harnessed. However, the fall arrest system Mr Hayter was using had the rope grab set too far down the rope, which meant the system failed to arrest his fall before he passed through the skylight.
SafeWork NSW prosecuted PV Solar Pro for failing to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act). The offence exposed Mr Hayter, as well as two other workers present on the day, to a risk of death or serious injury. PV Solar pleaded guilty and appeared for sentence.
Legal Issues
- The appropriate sentence for a category 2 offence under s 32 of the Work Health and Safety Act 2011, where a worker died following a fall from height
- The objective seriousness of the offence, including the adequacy of the fall prevention measures taken and the available guidance material
- The weight to be given to mitigating factors, including the guilty plea, absence of prior convictions, remorse, and assistance to authorities
- The financial capacity of PV Solar Pro to pay a fine, given its size and the impact of COVID-19 on its operations
Decision
Scotting DCJ assessed the objective seriousness of the offence in the mid-to-high range. Extensive guidance material on the risks of falls through skylights was available to PV Solar at the time, including a SafeWork NSW Safety Alert issued specifically about falls through skylights dated 5 April 2018, only months before the incident. Despite conducting two inspections and completing a risk assessment, PV Solar's supervisor failed to identify skylights as a hazard in the Commercial Inspection Form, and the rope grab on Mr Hayter's fall arrest system was incorrectly positioned.
On mitigating factors, the court accepted that PV Solar had no prior convictions, demonstrated genuine remorse, cooperated with authorities, and had taken steps toward rehabilitation. The guilty plea was entered at an early stage. These factors collectively attracted a 25% discount on the fine, consistent with the principles in R v Thomson and Houlton and subsequent authority.
On capacity to pay, the court heard evidence that PV Solar held approximately $500,000 in its bank account, with the directors having deliberately preserved funds after the incident to meet any penalty and costs. The court found this sum sufficient to meet both the fine and the agreed prosecutor's costs of $70,000, and did not further reduce the fine on capacity grounds. In the alternative, the court noted a capacity to pay cap of $500,000 if that assessment were wrong.
The court also considered the victim impact statement read by Mr Hayter's mother, treating the impact of his death on his family as relevant to the harm done to the community, as a component of the sentencing exercise.
Orders Made
- PV Solar Pro Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
- Fine of $300,000 imposed (reflecting a starting point of $400,000, reduced by 25% for the guilty plea)
- Prosecutor's costs of $70,000 ordered
- 50% of the fine ordered to be paid to the prosecutor, pursuant to s 122(2) of the Fines Act 1996
Key Takeaways
- A failure to identify skylights as a hazard during site inspections, combined with an incorrectly configured fall arrest system, was assessed as mid-to-high objective seriousness under the Work Health and Safety Act 2011, particularly given the volume of publicly available guidance material addressing exactly that risk.
- The District Court confirmed that an early guilty plea, genuine remorse, cooperation with authorities, and an absence of prior convictions are significant mitigating factors in WHS prosecutions, collectively warranting a 25% reduction in the starting fine.
- Where a defendant company has deliberately preserved funds to meet a potential penalty, the court will take that into account when assessing capacity to pay and may decline to reduce the fine on that basis.
- Under s 122(2) of the Fines Act 1996, the court ordered that 50% of the fine be paid directly to the prosecutor, SafeWork NSW, which is a standard feature of WHS penalty orders in this jurisdiction.
- Victim impact statements from deceased workers' families are admissible and relevant at sentencing, with the court treating the harm to the family as part of the broader harm done to the community.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Work Health and Safety Regulation 2017 (NSW), cll 37, 78-80 and 299
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274
- Hili v The Queen (2010) 253 CLR 58
- 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 Youkhana [2004] NSWCCA 412