Citation: SafeWork NSW v Canon Roofing Solutions Pty Ltd [2023] NSWDC 467
Court: District Court of New South Wales
Date: 3 November 2023
Judge: Russell SC DCJ
Background
Canon Roofing Solutions Pty Ltd is a roofing company whose sole director, secretary and employee was Mr Byron Burke. In September 2020, Canon was engaged by an insurance building solutions company to carry out storm-damage rectification works at a site in Moorebank, NSW. Canon in turn subcontracted the physical work to PRW Services Pty Ltd, whose director, Mr Peter Whalan, supervised the site.
On 19 November 2020, a worker engaged by PRW, Mr Troy Irwin, was working on a rear awning roof at the site. He stepped onto a roof sheet that was not secured by screws to the top purlin and fell approximately seven metres through the roof to the ground below. Mr Irwin sustained multiple fractures and serious injuries.
SafeWork NSW prosecuted Canon as a person conducting a business or undertaking (PCBU) under the Work Health and Safety Act 2011 (NSW). Canon pleaded guilty to failing to comply with its primary duty of care under section 19 of that Act, thereby exposing Mr Irwin to a risk of death or serious injury contrary to section 32. The parties initially disputed certain facts, but ultimately agreed on a full statement of facts before the sentencing hearing.
Legal Issues
- What objective seriousness should be attributed to Canon's offending?
- Which mitigating and aggravating factors applied in sentencing?
- What weight should be given to Canon's early guilty plea?
- Whether Canon's asserted limited capacity to pay warranted a reduction in the fine imposed?
- What was the appropriate penalty within the statutory maximum of $1,766,130?
Decision
Objective seriousness: The court found that the offending was of moderate objective seriousness. Canon failed to undertake an adequate site-specific risk assessment, failed to develop and enforce an adequate Safe Work Method Statement (a document specifying how high-risk construction work is to be carried out safely), and failed to provide adequate information, training and instruction to workers. No Canon employee attended the site on the day of the incident. The risk of a fall from height in the roofing industry is well-known, and Canon had the means to implement readily available control measures.
Mitigating and aggravating factors: In mitigation, the court accepted Canon's cooperation with SafeWork NSW and its early guilty plea. There was no prior relevant criminal history. In terms of aggravating factors, the court noted that the consequences of Canon's failures were serious, Mr Irwin suffered significant injuries, and the risk was foreseeable. The court also noted that PRW's supervisor, Mr Whalan, bore some responsibility for the incident, which was taken into account in assessing Canon's culpability, though that did not diminish Canon's independent statutory duty.
Capacity to pay: Canon argued that its current lack of income warranted a reduction in the fine. The court rejected this submission. It found that the absence of income was a voluntary and tactical decision on Canon's part, not a genuine incapacity. The court further observed that the prevalence of falls in the roofing industry heightened the need for general deterrence, which also weighed against any reduction.
Penalty: The court assessed the appropriate base fine at $400,000 and applied a 25 per cent reduction to reflect the early guilty plea, arriving at a final fine of $300,000. The court ordered that 50 per cent of the fine be paid to SafeWork NSW as prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW). Canon was also ordered to pay the prosecutor's costs.
Orders Made
- Canon Roofing Solutions Pty Ltd was convicted.
- Canon Roofing Solutions Pty Ltd was ordered to pay a fine of $300,000 (reduced from a base of $400,000 by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Canon Roofing Solutions Pty Ltd was ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that a PCBU's duty of care under section 19 of the Work Health and Safety Act 2011 (NSW) cannot be delegated: subcontracting physical work to another party does not discharge the principal contractor's independent safety obligations.
- Where a defendant's apparent lack of income is found to be a voluntary and tactical decision rather than genuine financial hardship, a sentencing court will decline to moderate a fine on capacity-to-pay grounds.
- The persistent prevalence of falls in the roofing industry carries significant weight in the general deterrence analysis, reinforcing courts' reluctance to discount penalties in this sector.
- An early guilty plea attracted a 25% reduction to the base fine, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the cases applying it in work health and safety matters.
- Under section 122(2) of the Fines Act 1996 (NSW), a court may direct that a portion of a penalty fine be paid to the prosecuting authority, and the District Court exercised that power by directing 50% of the fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 14, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- 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