Citation: SafeWork NSW v Wrigley Metal Roofing Co Pty Ltd [2025] NSWDC 434
Court: District Court of New South Wales
Date: 29 October 2025
Judge: Russell SC DCJ
Background
A roofing subcontractor was engaged to perform re-sheeting and cladding work at a residential renovation site at Avalon Beach, NSW. The principal contractor had installed perimeter scaffolding at the site, but portions of that scaffolding were later removed, without engaging a licensed scaffolder, to accommodate the installation of an awning and cladding components.
In the week before the incident, workers placed an unsecured plank at the top level of the scaffold to allow movement between the scaffold and the roof. The plank sat approximately 3.8 metres above the ground with no edge protection, no toe-board, and no intermediate or top railing at its edge.
On 25 July 2022, an apprentice roof sheeter employed by the subcontractor traversed the plank to inspect the work area. On returning, he climbed down the outside of the scaffold, slipped, and fell approximately 3.8 metres to the concrete below. He suffered serious head injuries, including cerebral haematomas, skull and facial fractures, bilateral pneumothoraces, and pulmonary contusions.
Legal Issues
- Whether the roofing subcontractor, as a person conducting a business or undertaking (PCBU) under section 19 of the Work Health and Safety Act 2011 (NSW), failed to comply with its primary duty of care
- What constituted the appropriate penalty, having regard to objective seriousness, mitigating and aggravating factors, and the purposes of sentencing
- Whether the subcontractor's capacity to pay the fine required adjustment to the penalty
- Whether prosecution costs should be ordered
Decision
The subcontractor pleaded guilty to a category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW): failing to comply with its primary duty under section 19, thereby exposing a worker to a risk of death or serious injury. The maximum penalty for such an offence is $1,860,843.
Russell SC DCJ assessed the objective seriousness of the offending. The failures identified in the amended summons were numerous and compounding: the subcontractor had not undertaken an adequate risk assessment, had not developed a site-specific Safe Work Method Statement (SWMS) for the high-risk construction work, had failed to provide adequate information, training, supervision, and instruction about working at heights, and had not verified that scaffold components (including handrails, mid-rails, transoms, and toe-boards) were correctly installed and remained in place. Workers were also permitted to access the roof without appropriate safety measures.
The court treated the harm suffered by the worker as substantial and therefore an aggravating factor. There were, however, mitigating factors: the subcontractor had no prior convictions, and an early guilty plea warranted a 25% discount from the otherwise appropriate fine. The subcontractor was placed into liquidation on 30 April 2025, and no submissions were made about capacity to pay. The court noted that where an offender seeks a reduction based on limited capacity to pay, the evidentiary onus lies on the offender. No such argument having been advanced, the court did not reduce the fine on that basis. A fine of $300,000 was assessed as appropriate before the plea discount, reduced to $225,000 after applying that 25% reduction.
Orders Made
- Wrigley Metal Roofing Co Pty Ltd convicted of the offence
- Fined $225,000 (reflecting a 25% reduction for an early guilty plea from a starting point of $300,000)
- 50% of the fine to be paid to the prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW)
- Costs ordered in favour of the prosecutor, agreed in the amount of $23,000
Key Takeaways
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A PCBU's failure to implement multiple, compounding safety measures, including adequate risk assessment, a site-specific SWMS, proper supervision, and verification that scaffold components remained in place, can each constitute a reasonably practicable step the omission of which grounds a category 2 WHS offence.
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Where an offender seeks to have a fine reduced on the basis of limited capacity to pay, the evidentiary onus rests on the offender to satisfy the court; without that evidence, the court will not apply a reduction on that basis, even where the company has entered liquidation.
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An early guilty plea attracted a 25% discount from the otherwise appropriate fine, consistent with the court's obligation under section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to consider when and in what circumstances the plea was entered.
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Under section 122(2) of the Fines Act 1996 (NSW), the court ordered that 50% of the fine be directed to the prosecutor, a provision that applies in WHS prosecutions brought by SafeWork NSW.
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Substantial harm to the victim was treated as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), reinforcing that the severity of actual injury is a relevant consideration in assessing the objective seriousness of WHS offences even where the maximum penalty already reflects the potential for serious harm.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79, 291
- 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 [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465