Citation: SafeWork NSW v LJW Solar Pty Ltd [2022] NSWDC 526
Court: District Court of New South Wales
Date: 2 November 2022
Judge: Strathdee DCJ
Background
A solar panel installation company pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW) after one of its workers suffered serious injuries falling from a roof. The company had been engaged to install a solar electricity system on the roof of a newly constructed childcare centre in Schofields, NSW.
On 7 January 2020, five workers accessed the roof to carry out the installation. The worksite lacked permanently fixed anchor points, perimeter edge protection, and dedicated fall prevention devices. Workers were instead relying on L-foot brackets, which were designed to support solar panels weighing around 20 kilograms and not engineered to withstand the force of a human fall.
When light rain began, an eighteen-year-old worker, Reece Gallagher, was instructed to return to the ground. He descended on his hands and knees across the pitched roof, with the traveller rope out of reach. He slipped and fell approximately 3.5 metres to concrete below, suffering a T12 burst fracture and a pelvic fracture. The Roof Works Supervisor, who was responsible for supervising the younger workers, had not attached his own harness to any anchor point, setting a poor example for the inexperienced crew.
Legal Issues
- Whether the defendant failed to comply with its primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the safety of workers so far as reasonably practicable, thereby exposing workers to a risk of death or serious injury
- What weight should be given to the objective seriousness of the offending in determining the appropriate penalty
- What mitigating and aggravating factors applied, including the defendant's limited financial capacity
- What discount applied for the utility of the early guilty plea
- Whether the defendant should pay the prosecutor's costs
Decision
The District Court proceeded to sentence on the agreed facts following the defendant's guilty plea. Strathdee DCJ found the offending to be of considerable objective seriousness. The SWMS prepared by the company was generic, did not address the specific risks of this building, was not on site, and had not been seen by several workers. The JSA conducted on the morning of the incident failed to address how workers would safely access and exit the roof. These were clear and foreseeable failures in circumstances where the relevant guidance materials and regulatory requirements were well established.
A significant aggravating feature was that the injured worker, Mr Gallagher, was a vulnerable, inexperienced eighteen-year-old who was not appropriately supervised. The Roof Works Supervisor's failure to clip on to any anchor point himself made the objective seriousness of the offending materially worse. His Honour distinguished this matter from the decision in Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, noting that case involved a very different factual context.
The Court accepted the defendant's limited financial capacity as a relevant factor. However, the evidence supporting capacity to pay was described as "fairly limited." The Court took into account both the prosecutor's costs and the defendant's own legal costs when calibrating the fine, and exercised some leniency accordingly.
Having assessed the objective seriousness and all relevant sentencing factors, Strathdee DCJ set the base fine at $800,000. The defendant received a 25% discount for the utility of its early guilty plea, reducing the fine to $600,000.
Orders Made
- The defendant is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- A fine of $600,000 is imposed (reflecting a 25% reduction from the base fine of $800,000 for the early guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor
- The defendant is to pay the prosecutor's agreed costs of $39,500
Key Takeaways
- A generic SWMS that does not address the specific hazards of a particular worksite, and that is absent from the site on the day of work, represents a significant failure of a PCBU's primary duty under s 19(1) of the Work Health and Safety Act 2011 (NSW).
- Where an injured worker is young, inexperienced, and vulnerable, and where a supervisor sets a poor example by failing to use safety equipment, the objective seriousness of the offending is heightened accordingly.
- The District Court confirmed that a defendant's limited financial capacity is a relevant consideration in fixing a monetary penalty, but that the evidentiary basis for such a claim must be substantive.
- Under the established sentencing framework, prosecutor's costs are the normal outcome following a successful prosecution, and the court may take those costs into account when assessing the overall financial burden on a defendant.
- A 25% discount was applied for the utility of the early guilty plea, consistent with the approach established in R v Thomson & Houlton (2000) 49 NSWLR 383.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cls 78, 79, 291, 299, 300
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Latoudis v Casey (1990) 170 CLR 534
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Additional cases cited in the judgment include Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310, and Orbit Drilling v The Queen (2012) 35 VR 399