Citation: SafeWork NSW v Perry's Roofing Pty Ltd [No. 2] [2022] NSWDC 262
Court: District Court of New South Wales
Date: 14 July 2022
Judge: Russell SC DCJ
Background
A roofing contractor was engaged to remove and replace asbestos cement roof sheeting at an industrial site in Moorebank, NSW, following hail damage in December 2018. The contractor employed and engaged workers, including an 18-year-old and a 15-year-old apprentice, to carry out the removal work. The timber purlins (horizontal structural members supporting the roof) were in poor condition, showing visible cracks and signs of splitting.
On 28 February 2019, workers were stacking stripped asbestos sheets in piles of between 10 and 25 sheets, each stack weighing approximately 500 to 600 kilograms. The excessive weight of a third stack caused multiple timber purlins to break, collapsing that section of the roof and damaging the wire safety mesh below. Two workers fell approximately four metres onto a concrete floor, and two others sustained injuries during the collapse.
The contractor, Perry's Roofing Pty Ltd, pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing four named workers to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence was a fine of $1,500,000. This judgment addressed the appropriate sentence.
Legal Issues
- What was the appropriate fine, having regard to the objective seriousness of the offence, the need for general and specific deterrence, and the financial capacity of the defendant?
- What discount, if any, should be applied to reflect the early guilty plea?
- Whether an order under section 238 of the Work Health and Safety Act 2011 (NSW) requiring the defendant to undertake a work health and safety improvement project was appropriate in the circumstances.
- What costs order should be made?
Decision
Objective seriousness and penalty
The court assessed the offence as being of moderate-to-high objective seriousness. The risk was an obvious one: stacking heavy sheets on a visibly deteriorated timber roof structure without first obtaining a structural inspection created a clear danger of collapse. No structural inspection had been conducted, no adequate Safe Work Method Statement had been developed or enforced for the task, and workers were not prohibited from commencing work until the integrity of the roof had been assessed. Four workers were exposed to the risk, two suffered serious injuries from the fall, and the potential for death was real.
Mitigating factors and financial capacity
The court accepted a number of mitigating factors: the early guilty plea (attracting a 25 percent discount), cooperation with the investigation, no prior relevant convictions, and some remedial steps taken after the incident. The court also considered the defendant's financial position, noting that Perry's Roofing had recorded a loss of approximately half a million dollars in the preceding financial year. Despite this, the court noted that the director had continued to operate the business with no plans to close it. The court moderated the fine it would otherwise have imposed, but held that the absence of basic precautions, the number of workers exposed, and the need for both general and specific deterrence required a still-substantial penalty.
Project order under section 238
SafeWork NSW applied for an order requiring the defendant to produce an animated educational video raising industry awareness of falls from heights. The court declined to make such an order. The specific hazard in this case (roof collapse from excessive point loading) was rare, with no similar cases before the court in the preceding six years. The court observed that a section 238 order would be more appropriate in cases involving more commonly occurring hazards, such as falls from height due to absent edge protection or non-use of safety harnesses. The court also noted that the defendant's limited financial capacity made funding such a project impractical, particularly given the fines in this and a separate related prosecution.
Costs
The parties agreed to a costs order in favour of the prosecutor, and the court made that order accordingly.
Orders Made
- Perry's Roofing Pty Ltd convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $150,000 imposed (being $200,000 reduced by 25 percent for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine to be paid to the prosecutor (SafeWork NSW).
- Perry's Roofing Pty Ltd ordered to pay the prosecutor's costs as agreed or assessed.
- Application for a project order under section 238 of the Work Health and Safety Act 2011 (NSW) refused.
Key Takeaways
- A failure to obtain a structural inspection before commencing heavy removal work on a visibly deteriorated roof, and the absence of an adequate Safe Work Method Statement addressing that specific risk, constituted a breach of the primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW).
- The District Court applied a 25 percent discount to reflect an early guilty plea, reducing the base fine from $200,000 to $150,000, well below the $1,500,000 statutory maximum.
- Poor financial performance does not automatically shield a defendant from a substantial penalty: the court moderated the fine but declined to reduce it to a nominal amount, emphasising that general and specific deterrence retained independent weight in work health and safety sentencing.
- Under section 238 of the Work Health and Safety Act 2011 (NSW), a project order is more apt where the hazard addressed is common and recurrent across industry; a rare and specific risk scenario is less suitable as a vehicle for such an order.
- Where a defendant's financial capacity is genuinely limited, a court may take that into account in calibrating penalty, but limited capacity to pay does not displace the sentencing objectives of deterrence and denunciation in serious workplace safety cases.
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, cll 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Perry's Roofing [2022] NSWDC 261
- SafeWork NSW v Ru Dong Li [2018] NSWDC 189
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465