Citation: SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75
Court: District Court of New South Wales
Date: 31 March 2023
Judge: Russell SC DCJ
Background
Evolve Roofing Pty Ltd, a metal roofing installation business, was engaged to replace the roof of a school gymnasium at Presbyterian Ladies College Sydney. Evolve subcontracted Metro Crane Services Pty Ltd to crane roofing materials onto the existing gymnasium roof, while Evolve's own employees would fit and fix those materials. Under the arrangement, Evolve held exclusive control of the area around the gymnasium, including responsibility for health and safety matters.
During the work, Metro Crane's dogman, Mr Grant Ible, stepped backwards on the roof and fell nine metres through a fragile polycarbonate skylight onto the floor below. Mr Ible had not received working at heights training. He was not wearing a harness at the time.
Evolve pleaded guilty to failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers, including Mr Ible, to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- What was the appropriate fine having regard to the objective seriousness of the offence?
- What weight should be given to mitigating factors, including the early guilty plea?
- What discount, if any, was warranted by reason of Evolve's reduced capacity to pay?
- What role should general and specific deterrence play in sentencing for a work health and safety offence in the roofing industry?
Decision
The court assessed the objective seriousness of the offence as significant. Evolve had failed to take several simple and effective precautions: confirming workers used a fall-arrest harness system, instructing workers not to work on the roof without one, providing safety netting or structural covers over the skylights, inducting Metro Crane's workers into its Safe Work Method Statement, and making reasonable enquiries of Metro Crane about its working at heights systems. The risk of a worker falling through a fragile skylight was foreseeable and the means of eliminating or minimising it were readily available.
Russell SC DCJ emphasised the broader context of roofing falls in New South Wales, cataloguing more than twenty roofing cases heard in the District Court resulting in deaths and catastrophic injuries. The judgment treated general deterrence as a significant sentencing consideration, describing persistent failures to adopt basic fall-prevention measures as responsible for ongoing carnage in the roofing industry.
The court set a base fine of $400,000. That figure was reduced by 25 percent to $300,000 to reflect the early guilty plea, in accordance with section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court then further reduced the fine to $150,000, on the basis of Evolve's demonstrated reduced capacity to pay. The court accepted evidence of a substantial outstanding Australian Taxation Office debt being repaid in instalments, adverse impacts of the COVID-19 pandemic and 2022 wet weather on the company's income, and the historical treatment of director drawings as loans that were no longer recoverable.
Orders Made
- Evolve Roofing Pty Ltd convicted of the offence.
- Evolve Roofing Pty Ltd ordered to pay a fine of $150,000.
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
- Evolve Roofing Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- The District Court confirmed that a defendant's capacity to pay is a legitimate and weighty consideration in fixing the quantum of a work health and safety fine, capable of producing a substantial reduction below an otherwise appropriate penalty.
- A 25 percent discount for an early guilty plea was applied consistently with section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), reducing the base fine from $400,000 to $300,000 before the further capacity-to-pay reduction was applied.
- General deterrence carries significant weight in sentencing for roofing industry offences. Russell SC DCJ catalogued more than twenty fall-related prosecutions resulting in deaths and serious injuries as context for why courts in this jurisdiction treat failures to adopt basic fall-prevention measures seriously.
- Where a principal contractor or head contractor holds exclusive control of a worksite and its health and safety arrangements, its duty under section 19 of the Work Health and Safety Act 2011 (NSW) extends to workers supplied by subcontractors, not only its own employees.
- Reasonably practicable measures identified in this case included providing and enforcing the use of fall-arrest harnesses, installing structural skylight covers or safety netting, and making active enquiries of subcontractors about their working at heights systems before work commenced.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), reg 78
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- 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; Attorney General for NSW 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 Landmark Roofing Pty Ltd [2020] NSWDC 202
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465