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District Court 25 May 2022

SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd

[2022] NSWDC 175

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

Citation: SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd [2022] NSWDC 175
Court: District Court of New South Wales
Date: 25 May 2022
Judge: Strathdee DCJ

Background

A plumbing and roofing contractor, operating as the head contractor on a residential apartment building project in Port Macquarie, engaged a subcontractor to assist with roof sheeting replacement works. The building was three storeys high and had four unprotected polycarbonate skylights on the roof. Before and during the day of the incident, no covers, guardrails, or other protective measures had been installed around either the building's perimeter edges or the skylights.

On 18 March 2019, two employees of the subcontractor were directed to collect new roof sheets approximately 18 metres long. To reach the sheets, they had to walk roughly 20 metres past the unprotected skylights. Their harness ropes were too short to reach the sheet stack, so they disconnected their harnesses. Carrying the heavy sheet overhead with both hands, one worker tripped and fell approximately 6.5 metres through a skylight onto an internal stair landing. He sustained severe injuries, including three vertebrae fractures in the neck, a fractured skull, subdural and extradural brain haematoma, and additional spinal fractures. He had no capacity for employment as at January 2020.

The head contractor pleaded guilty to a charge under section 32 of the Work Health and Safety Act 2011 (NSW), being a person conducting a business or undertaking that failed to comply with its primary duty under section 19(1) of that Act, thereby exposing workers to a risk of death or serious injury.

  • Whether the defendant's failure to comply with its duty under section 19(1) of the Work Health and Safety Act 2011 exposed workers to a risk of death or serious injury, contrary to section 32 of that Act.
  • The appropriate assessment of objective seriousness of the offence.
  • The weight to be given to subjective factors, including the defendant's early guilty plea, its post-incident remediation, its character as a small family business, and the personal impact of the incident on its principal.
  • The application of parity principles given that the subcontractor (Lewin Roofing) had been separately sentenced for the same incident.
  • The applicable fine and the quantum of discount for the early guilty plea.

Decision

Strathdee DCJ accepted the guilty plea and convicted the defendant. The court found that the failures were significant: the Safe Work Method Statement the defendant prepared was generic and did not address the site-specific hazard of a fall through a skylight, no fall prevention devices such as covers or guardrails were installed over the skylights, and the use of harnesses was unsuitable for the task of carrying long roof sheets that required both hands. Extensive guidance materials, including SafeWork NSW codes of practice and safety alerts specifically addressing skylight fall risks, had been available to the defendant before the incident.

On parity, the court accepted that the head contractor bore a greater degree of responsibility than the subcontractor, and should not be treated more leniently. Both were ultimately treated in a similar fashion for sentencing purposes.

The court found this to be a strong subjective case. The defendant was described as a small family company operating in a regional community, with a low likelihood of reoffending and good prospects of rehabilitation. The principal had been personally affected by the incident. The defendant had also taken meaningful remedial steps after the incident, including installing plywood covers over the skylights and erecting full perimeter scaffolding. A 25% discount was applied for the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383.

The court set the pre-discount fine at $180,000, reduced to $135,000 after the 25% plea discount.

Orders Made

  • The defendant is convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
  • A fine of $135,000 is imposed (reflecting a pre-discount fine of $180,000, reduced by 25% for the early guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is ordered to pay the prosecutor's costs in the agreed sum of $29,000, pursuant to section 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • Under section 19(1) of the Work Health and Safety Act 2011, a head contractor's duty to ensure worker health and safety extends to subcontractor workers on site, and a generic Safe Work Method Statement that fails to address site-specific hazards such as unprotected skylights will not satisfy that duty.
  • The District Court confirmed that where harnesses are the nominated fall-arrest measure, contractors must assess whether harnesses are actually suitable for the specific tasks being performed. Here, because the sheets required both hands to carry, harnesses were inadequate and no alternative control measure had been implemented.
  • Parity principles applied so that the head contractor, bearing the greater share of responsibility, was not sentenced more leniently than the subcontractor sentenced for the same incident.
  • A strong subjective case, including an early guilty plea, genuine remorse, post-incident remediation, and the character of the business as a small regional family company, collectively attracted significant leniency from the court.
  • The maximum 25% discount for an early guilty plea was applied in accordance with R v Thomson and Houlton, reducing the fine from $180,000 to $135,000.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cll 78, 79, 291
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(k)
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Veen v R (No. 2) (1988) 164 CLR 465
- SafeWork NSW v Lewin Roofing Pty Ltd [2021] NSWDC 707
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Poletti Corporation [2019] NSWDC 491
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464