Citation: SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144
Court: District Court of New South Wales
Date: 10 May 2023
Judge: Russell SC DCJ
Background
Metro Crane Services Pty Limited (Metro) was engaged as a subcontractor to provide crane services and a work crew to load roofing materials onto the roof of a school gymnasium in Croydon. The work was subcontracted to Metro by Evolve Roofing Pty Ltd, which had been engaged to replace the gymnasium roof. There was no written contract between the two companies governing the arrangement.
On the day of the incident, Metro's worker Mr Grant Ible was performing dogman duties on the roof (a dogman is a licensed worker who hooks and unhooks crane loads and directs crane operations). He stepped backwards and fell nine metres through a fragile fibreglass skylight, landing on the floor below and sustaining serious injuries.
Metro was prosecuted by SafeWork NSW for failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Ible to a risk of death or serious injury, contrary to section 32 of that Act. Metro ultimately entered a guilty plea after initially contesting the matter.
Legal Issues
- Whether Metro breached its duty as a person conducting a business or undertaking (PCBU) under section 19 of the Work Health and Safety Act 2011 (NSW)
- The objective seriousness of the offence and how it should be assessed for sentencing purposes
- What discount, if any, should apply to the penalty in light of Metro's late guilty plea and cooperation with investigators
- Whether Metro's capacity to pay was a relevant consideration in setting the fine
- The appropriate quantum of fine within the statutory maximum of $1,500,000
- The allocation of prosecution costs
Decision
The court convicted Metro of failing to comply with its duty as a PCBU under section 32 of the Work Health and Safety Act 2011 (NSW). The agreed facts established multiple failures: Metro did not conduct an adequate risk assessment before commencing work on the roof, did not inquire about the presence of safety netting or skylight barriers, did not implement an adequate supervision system, and did not confirm that workers had appropriate personal protective equipment or working-at-heights training.
Russell SC DCJ noted at the outset that the roofing industry is acutely dangerous when basic safety precautions are not taken, and provided a detailed table of prior roofing fall decisions from the same court, many involving deaths or catastrophic injuries. This context informed the court's assessment of the offence.
On the question of penalty, the court assessed a base fine of $400,000, reflecting the objective seriousness of the failures and the need for both general and specific deterrence. Metro received a 10% discount, reducing the fine to $360,000, in recognition of its guilty plea and its cooperation with SafeWork NSW throughout the investigation, including promptly providing all documents requested.
No submission was made regarding Metro's capacity to pay, so the court did not reduce the fine on that basis. The court also ordered that Metro pay the prosecutor's costs, and directed that 50% of the fine be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW).
Orders Made
- Metro Crane Services Pty Limited convicted of the offence
- Metro Crane Services Pty Limited ordered to pay a fine of $360,000
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor
- Metro Crane Services Pty Limited ordered to pay the prosecutor's costs
Key Takeaways
- A crane hire company operating as a subcontractor on a roofing job held its own independent WHS duty as a PCBU, even without a written contract, and was liable for multiple failures to protect its workers from falls from height.
- The base fine of $400,000 (reduced to $360,000 on plea) reflected the court's assessment that the failures were serious: an adequate risk assessment, inquiry about skylight protection, supervision, equipment checks, and height training were each identified as reasonably practicable measures that Metro failed to implement.
- A guilty plea entered shortly before a scheduled trial attracted only a 10% discount rather than the larger discounts typically available for early pleas; the timing of the plea is therefore material to the quantum of any reduction.
- Cooperation with prosecutors, including prompt provision of documents, was treated as a mitigating factor under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), though it did not independently reduce the fine beyond what the plea discount already reflected.
- Where a defendant makes no submission about capacity to pay a fine, the court will not apply that consideration, and a substantial fine may still be imposed to reflect the seriousness of the offence and the public interest in general deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cl 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- 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
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75