Citation: SafeWork NSW v Riverwall Constructions Pty Ltd [2022] NSWDC 408
Court: District Court of New South Wales
Date: 14 September 2022
Judge: Russell SC DCJ
Background
Riverwall Constructions Pty Ltd is a building repair and reinstatement company that was engaged by a loss adjustor to replace hail-damaged roofs at a commercial site in Moorebank. Riverwall subcontracted the roofing work to Perry's Roofing Pty Ltd, which in turn engaged Prime Metal Roofing Pty Ltd to supply labour for the job.
On 11 February 2019, a 25-year-old labourer engaged by Prime Metal was dismantling edge protection on the roof. He was electrocuted when a steel handrail he was holding made contact with energised high-voltage overhead power lines running near the building. He died from his injuries. A second labourer who attempted to assist him suffered severe flash burns to his legs.
SafeWork NSW prosecuted Riverwall Constructions under the Work Health and Safety Act 2011 (NSW). The proceedings came before the District Court for sentencing after Riverwall Constructions entered a plea of guilty.
Legal Issues
- Whether Riverwall Constructions, as a person conducting a business or undertaking (PCBU) with a duty under s 19 of the WHS Act, failed to comply with that duty and thereby exposed workers to a risk of death or serious injury contrary to s 32 of the Act.
- The appropriate penalty, having regard to the objective seriousness of the offence, mitigating and aggravating factors, the early plea of guilty, and the defendant's capacity to pay.
- Whether a community service or educative order should be imposed in addition to a fine, pursuant to s 238 of the WHS Act.
Decision
The court accepted Riverwall Constructions' guilty plea and proceeded to sentence on the agreed facts. The central failures were three: Riverwall did not require its roofing subcontractor to conduct a site-specific risk assessment that identified the proximity of energised power lines; it did not arrange for those power lines to be de-energised before work began; and it did not verify that the subcontractor's Safe Work Method Statement addressed the hazard of power lines and contained adequate control measures.
In assessing objective seriousness, the court noted that these were straightforward, well-known obligations in the construction industry and that the risk of electrocution near overhead power lines was entirely foreseeable. The consequences were catastrophic: one worker died and another suffered significant injuries. The court placed the offence at a moderate to high level of objective seriousness.
On mitigating factors, the court gave credit for the early guilty plea, which attracted a 25% reduction to the fine. The court also took into account the defendant's cooperation with the investigation, its remorse, and evidence that it had no prior relevant convictions. The harm caused to the deceased's family, partner, and friends was taken into account as an aspect of harm to the community under the sentencing legislation.
The court assessed a base fine of $800,000, reduced by 25% to $600,000 to reflect the early plea. The court also imposed a community correction order under s 238 of the WHS Act, requiring Riverwall Constructions to fund the development of a de-identified educative animated video about the incident to be managed and owned by SafeWork NSW.
Orders Made
- Riverwall Constructions Pty Ltd was convicted on 30 August 2022.
- Riverwall Constructions Pty Ltd is to pay a fine of $600,000 (base fine of $800,000, reduced by 25% for the early plea of guilty).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor (SafeWork NSW).
- Riverwall Constructions Pty Ltd is to pay the prosecutor's agreed costs of $41,300.11.
- Pursuant to s 238 of the WHS Act, within six months of the orders, the defendant is to fund (up to $20,000) the development and production of a de-identified educative animated video addressing: the incident and the risk to which the workers were exposed; a safe system of work that would have reduced that risk; and other SafeWork NSW-approved guidance on safe work on roofs near power lines.
- SafeWork NSW is to manage the project, approve the content and provider, and hold all copyright and distribution rights in the video.
- The video is to bear the SafeWork NSW logo and the NSW waratah emblem.
- The defendant is to notify the prosecutor and the Registrar of any change of address for service.
- Liberty to restore if parties wish to vary the order or the defendant does not comply.
Key Takeaways
- A PCBU at the head of a subcontracting chain can be held liable under s 32 of the WHS Act where it fails to verify that downstream subcontractors have identified and controlled foreseeable hazards, even where the PCBU does not directly perform the hazardous work.
- The District Court treated the failure to address the hazard of energised overhead power lines during roof work as a significant departure from well-known industry obligations, placing the offence at a moderate to high level of objective seriousness.
- An early guilty plea attracted a 25% reduction to the fine, bringing the penalty from $800,000 to $600,000 out of a statutory maximum of $1,500,000.
- Under s 238 of the WHS Act, the court has power to order a convicted defendant to fund the creation of educative materials about the incident, with management and ownership of those materials vesting in the regulator.
- Where a subcontractor's Safe Work Method Statement is obtained but not scrutinised for adequacy, that failure can ground liability for the engaging PCBU when the unaddressed hazard causes death or serious injury.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 17, 19, 32, 238, 244
- Work Health and Safety Regulation 2017 (NSW), cll 166, 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:
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIRComm 263; (2001) 109 IR 316
- WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125