Citation: SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44
Court: District Court of NSW
Date: 5 March 2021
Judge: Strathdee DCJ
Background
Easy Fall Guttering Pty Limited supplied and installed roof guttering products. It operated through a network of licensed installers under referral agreements, one of which was with Aceline Plumbing Group Pty Ltd. Work was effectively channelled to an unlicensed sole trader, Mr Hogan, who had worked with entities associated with Easy Fall's sole director for approximately 12 years.
In early 2017, Easy Fall was engaged to replace gutters at a residential property. Mr Hogan accepted the installation job after Easy Fall's operations manager forwarded the job to him. He received only a roof plan, no site photographs, and no information about work health and safety risks at the property.
On 16 May 2017, Mr Hogan was working alone at the rear of the property, where a pool abutted the house. He constructed a makeshift platform using planks and a trestle over the pool. While attempting to lift a 7.5-metre steel gutter section, the trestle moved and he fell approximately two metres onto the concrete pool edge, sustaining serious injuries including a spinal L3 burst fracture requiring lumbar fusion surgery. Easy Fall did not notify SafeWork NSW of the incident; the regulator only became aware of it when Mr Hogan lodged his own request for service more than two months later.
Legal Issues
- Whether Easy Fall failed to comply with its primary duty of care under s 19(1) of the Work Health and Safety Act 2011 (NSW), constituting a Category 2 offence under s 32
- Whether Easy Fall failed to immediately notify SafeWork NSW of a notifiable incident under s 38(1) of the Act
- Whether Easy Fall failed to consult, co-operate and co-ordinate activities with other duty holders under s 46 of the Act
- What penalty was appropriate across all three offences, having regard to objective seriousness, mitigating and aggravating factors, deterrence, capacity to pay, and the totality principle
Decision
Strathdee DCJ sentenced Easy Fall after it entered guilty pleas to all three charges. On the primary duty offence under s 19(1), the court assessed the objective seriousness as falling in the mid-range. The risk of serious injury from working at height without a safe work method statement or fall-prevention measures was foreseeable. Mr Axford had personally inspected the site, was aware the rear section posed access difficulties, and yet provided Mr Hogan with no safety instructions or control measures. The use of an unlicensed worker was treated as an aggravating feature.
On the notification offence under s 38(1), the court applied a parity analysis by reference to the penalty imposed on Aceline in related proceedings. It found Easy Fall should receive no lesser fine than Aceline for the same failure. On the consultation and co-ordination offence under s 46, the court acknowledged some overlap with the primary duty offence and took that into account under the totality principle when fixing the aggregate penalty.
Mitigating factors included the guilty pleas (warranting a 25% discount), no prior convictions, co-operation with the investigation, and evidence of financial difficulty. The court declined to order Easy Fall to pay the prosecutor's costs in recognition of those financial constraints. However, it rejected any suggestion that the fines should be substantially reduced on capacity-to-pay grounds, finding that the objective seriousness of the offending required penalties sufficient to achieve both specific and general deterrence.
Orders Made
- Easy Fall Guttering Pty Limited convicted on all three charges
- Fine of $225,000 imposed for the s 19(1) primary duty offence (base: $300,000, reduced by 25% for early guilty plea)
- Fine of $30,000 imposed for the s 38(1) failure-to-notify offence (base: $40,000, reduced by 25% for early guilty plea)
- Fine of $30,000 imposed for the s 46 consultation and co-ordination offence (base: $40,000, reduced by 25% for early guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of each fine to be paid to the prosecutor
- No order as to costs
Key Takeaways
- A business that supplies and channels installation work through referral arrangements remains subject to the primary duty of care under s 19(1) of the WHS Act in respect of those workers, even where the installer operates as a sole trader under a separate agreement.
- Personal awareness by a company's director of site-specific hazards, combined with a failure to provide any safe work method or height-safety instructions, went to the heart of the court's mid-range objective seriousness assessment.
- Under s 38(1) of the WHS Act, the obligation to notify the regulator of a notifiable incident falls on the person conducting the business or undertaking, and that obligation is not discharged by the worker informing the business internally.
- Financial hardship may influence ancillary costs orders, but the District Court held it cannot substantially reduce fines where the level of offending demands meaningful deterrent outcomes.
- Where offences partly overlap in subject matter (here, the s 46 and s 19 offences), the totality principle requires the sentencing court to ensure the cumulative penalty remains proportionate, which Strathdee DCJ addressed by factoring the overlap into the overall penalty calculation.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 38(1), 46
- Work Health and Safety Regulation 2011 (NSW)
- Fines Act 1996 (NSW), s 122(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Home Building Act 1989 (NSW)
- Plumbing and Drainage Act 2011 (NSW)
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- Veen v R (No 2) (1988) 164 CLR 465
- Orbit Drilling Pty Ltd v The Queen; Smith v R [2012] VSCA 82
- Jahandideh v R [2014] NSWCCA 178
- Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (1999) 90 IR 464
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Additional cases as cited in the judgment