Citation: SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261
Court: District Court of New South Wales
Date: 14 July 2022
Judge: Russell SC DCJ
Background
Perry's Roofing Pty Ltd was a residential and commercial roofing contractor engaged by Riverwall Constructions Pty Limited to replace a hail-damaged asbestos roof at a warehouse in Moorebank. Perry's Roofing in turn subcontracted Prime Metal Roofing Pty Ltd to supply labour for the work. The site had 11,000-volt energised overhead power lines running just 2.4 metres from the rear of the warehouse roof.
On 11 February 2019, a 25-year-old labourer, Joel White, was dismantling edge protection while standing on the roof. A steel handrail he was holding came into contact with the energised power lines and he was fatally electrocuted. A second labourer, Morris Higham, attempted to assist Mr White and suffered severe flash burns to his legs.
Perry's Roofing pleaded guilty to a breach of its duty as a person conducting a business or undertaking under s 19 of the Work Health and Safety Act 2011 (NSW), having exposed both workers to a risk of death or serious injury contrary to s 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- What was the objective seriousness of Perry's Roofing's failure to comply with its work health and safety duty?
- What mitigating and aggravating factors applied to the sentencing exercise?
- What weight should be given to the early guilty plea?
- What fine was appropriate having regard to Perry's Roofing's financial capacity and the purposes of sentencing, including general and specific deterrence?
- What orders should be made in relation to prosecution costs and allocation of the fine?
Decision
Perry's Roofing failed on three identified fronts: it did not conduct or verify that a site-specific risk assessment had been carried out (one that addressed the actual height and proximity of the power lines to the roof); it did not verify that arrangements had been made to de-energise the power lines before roofing works commenced; and it did not provide, implement, or enforce an adequate Safe Work Method Statement (SWMS) that identified the risks posed by the nearby power lines and the control measures required. The power lines were visible from both the roof and street level, meaning the hazard was not hidden.
The court assessed the objective seriousness of the offending, weighed the relevant aggravating factors (including the fatal outcome and the proximity of the hazard to the work being done) against mitigating factors, and took into account the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW), including general deterrence. The impact on Mr White's family, partner, and friends was detailed through five Victim Impact Statements read aloud in open court. The court treated the harm to those individuals as an aspect of harm to the community, as the sentencing legislation requires.
The court determined that the appropriate base fine was $600,000. Reflecting the utilitarian value of an early guilty plea, that figure was reduced by 25 per cent, producing a final fine of $450,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 per cent of the fine was directed to be paid to the prosecutor, SafeWork NSW. Perry's Roofing was also ordered to pay the prosecutor's costs.
Orders Made
- Perry's Roofing Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- Fined $450,000 (base fine of $600,000 reduced by 25% for early guilty plea).
- 50% of the fine to be paid to SafeWork NSW pursuant to s 122(2) of the Fines Act 1996 (NSW).
- Perry's Roofing Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- A 25% discount applied to the base fine for an early guilty plea, consistent with the sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the utilitarian value recognised in cases such as Muldrock v The Queen.
- Under s 19 of the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking bears a duty to ensure worker health and safety so far as is reasonably practicable; that duty extended here to verifying that subcontractors had conducted proper risk assessments and arranged for overhead power lines to be de-energised before work began.
- The presence of a visible, identified hazard (high-voltage power lines within 2.4 metres of the work area) was central to the court's assessment of objective seriousness, given that reasonable precautions were readily available and not taken.
- Victim Impact Statements from five of Mr White's family members and loved ones were taken into account as evidence of harm to the community, a factor the sentencing court is required to consider under the applicable legislation.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), the District Court directed that half the fine be paid to the prosecuting regulator, SafeWork NSW, which is a standard feature of WHS penalty proceedings in this jurisdiction.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32, 238
- Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- 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
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432