AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 14 September 2022

SafeWork NSW v Advanced Roofing Sydney Pty Ltd

[2022] NSWDC 407

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

Citation: SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
Court: District Court of New South Wales
Date: 14 September 2022
Judge: Russell SC DCJ

Background

Advanced Roofing Sydney Pty Ltd is a company that replaces metal roofing, walling and rainwater systems in the Sydney metropolitan region. In July 2019, the company was engaged by St Joseph's College to remove and replace the gymnasium roof, which sat approximately 8.4 metres above an indoor basketball court and contained nine ventilation penetrations.

After the ventilation points were removed from the roof, workers covered the resulting penetrations with black plastic sheeting and surrounded them with sandbags and yellow insulation bags. No structural covers, such as plywood boards, were placed over the penetrations. On 9 July 2019, a 22-year-old worker named Austin Humphreys stepped backwards while carrying a roof sheet, tripped on a sandbag, and fell through one of the plastic-covered penetrations. He fell 8.42 metres to the basketball court floor and suffered multiple traumatic injuries to his upper limbs, lower limbs and face.

Advanced Roofing pleaded guilty to failing to comply with its primary work health and safety duty under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Humphreys and his co-worker Jacob Kara to a risk of death or serious injury, contrary to s 32 of that Act.

  • What fine was appropriate for the offence, having regard to the objective seriousness of the conduct and relevant mitigating and aggravating factors?
  • What discount, if any, should apply to reflect the early plea of guilty?
  • Whether orders requiring the completion of safety training and preparation of a due diligence plan were appropriate under ss 238 and 241 of the Act.
  • Whether prosecution costs should be awarded.
  • The court also addressed, separately, the proper preparation of affidavit evidence filed in support of sentence proceedings.

Decision

The court assessed the offence as falling in the mid-range of objective seriousness. The risk of a fall through an unprotected roof penetration was well-known and foreseeable. Advanced Roofing had pre-existing Safe Work Method Statements that identified unprotected penetrations as a hazard, yet the company failed to implement adequate controls. The penetrations were covered only with black plastic sheeting, which was plainly incapable of preventing a person from falling through. The maximum penalty for the offence was $1,500,000.

The court identified several mitigating factors, including the early guilty plea, the absence of prior convictions, cooperation with SafeWork NSW's investigation, and remediation steps taken following the incident. Aggravating factors included the severity of the injuries sustained, the fact that the hazard had been identified in the company's own documentation but not properly addressed, and the personal impact on Mr Humphreys and his family as reflected in a Victim Impact Statement.

The court determined that the appropriate base fine was $200,000. Applying a 25% reduction for the early guilty plea, the fine was set at $150,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor.

The court also took the opportunity to comment critically on the defendant's preparation of affidavit evidence. Two affidavits were filed on the afternoon before the sentence hearing, in breach of the timetable set by Practice Note 16. The affidavits comprised 393 unpaginated pages, the overwhelming majority of which were irrelevant to the sentencing exercise. The court observed that annexing documents wholesale, including dozens of new safety policies with no bearing on the sentence, imposed an unnecessary burden on the court and the prosecutor and wasted court time.

Orders Made

  • Advanced Roofing Sydney Pty Ltd convicted and ordered to pay a fine of $150,000.
  • 50% of the fine directed to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).
  • Advanced Roofing Sydney Pty Ltd ordered to pay the prosecutor's costs as agreed or assessed.
  • Pursuant to s 241 of the Work Health and Safety Act 2011 (NSW), the defendant ordered to arrange for its sole director to complete a Certificate IV in Work Health and Safety (Construction Industry Specific) by 16 February 2023.
  • Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW), the defendant ordered to prepare a documented plan setting out how its sole director will comply with his duty to exercise due diligence to ensure the company meets its obligations under the Act.
  • Defendant ordered to provide the prosecutor with evidence of compliance with the training and plan orders as soon as practicable, and by no later than 16 February 2023.
  • Liberty to apply in the event of non-compliance.

Key Takeaways

  • A roofing company's pre-existing SWMS that identified unprotected penetrations as a hazard did not, of itself, satisfy the primary duty of care under s 19 of the WHS Act; the company was still required to implement controls adequate to address the identified risk.
  • The District Court treated it as a significant aggravating feature that the hazard was expressly identified in the defendant's own safety documentation yet the measures actually deployed on site (black plastic sheeting and sandbags) were plainly inadequate to prevent a fall.
  • An early guilty plea attracted a 25% discount on the base fine, reducing it from $200,000 to $150,000, consistent with the sentencing principles applied in WHS prosecutions under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under ss 238 and 241 of the Work Health and Safety Act 2011 (NSW), a court may order a convicted company to require its director to complete specific safety qualifications and to prepare a documented due diligence plan, in addition to imposing a financial penalty.
  • The court issued pointed guidance on the preparation of affidavit evidence for sentence hearings: late-filed, unpaginated affidavits containing hundreds of pages of irrelevant material will attract adverse comment and, where they impose unnecessary burdens on the court and opposing party, may have costs consequences.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 238, 241
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291, 299
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E
- 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
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash 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 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