SafeWork NSW v Easy Fall Guttering Pty Limited

[2021] NSWDC 44

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44

Hearing dates:

17 February 2021

Date of orders:

5 March 2021

Decision date:

05 March 2021

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the s 19 offence is $300,000.00 and that will be reduced by 25% to reflect the early plea.

(3)   Accordingly, I order the defendant pay a fine of $225,000.00.

(4) The appropriate fine for the s 38 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(5)   Accordingly, I order the defendant to pay a fine of $30,000.00.

(6) The appropriate fine for the s 46 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(7)   Accordingly, I order the defendant pay a fine of $30,000.00.

(8) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

(9)   I make no order as to costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – totality of sentence - appropriate sentence - parity

OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Home Building Act 1989 (NSW)

Plumbing and Drainage Act 2011 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92

Jahandideh v R [2014] NSWCCA 178

LawrensonDiecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464

Markaian v The Queen (2005) 228 CLR 357

McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; (2004) 137 IR 310 at 224

Morrison v Powercoal Pty Limited & Anor(No 3) [2005] NSWIRComm 61

Orbit Drilling Pty Ltd v The Queen; Smith v R [2012] VSCA 82

Ostrowski v Palmer [2004] HCA 30

R v Cage [2006] NSWCCA 304

R v Miria [2009] NSWCCA 68

SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v R (No 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151

WorkCover Authority of NSW (Inspector Tyler) v P&D Coachworks Pty Ltd [2000] NSWIRComm 80

Texts Cited:

SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces (2016)

The Work Health and Safety Consultation, Cooperation and Coordination Code of Practice dated December 2011

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Easy Fall Guttering Pty Limited (Defendant)

Representation:

Counsel: Mr C Magee for the Prosecutor
Mr D Chin SC and Mr M Diggins for the Defendant

Solicitors: Department of Customer Service (for the prosecutor)
Mr N Keats, McNally Jones Staff (for the defendant)

File Number(s):

2019/00230379001, 2019/00230426001 & 2019/00230453001

Publication restriction:

Nil

Judgment

1. Easy Fall Guttering Pty Limited (‘the defendant’) entered pleas of guilty to:

1. an offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) by reason of failing to comply with its duty pursuant to s 19(1) of the Act;

2. an offence pursuant to s 38(1) of the Act by reason of failing to notify the regulator immediately after becoming aware that a notifiable incident arising out of the conduct of its business undertaking has occurred; and

3. An offence pursuant to s 46 of the Act by reason of failing to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) and s 28 of the Act.

2. The offences to which the defendant pleads guilty are set out in the Amended Summonses filed 24 July 2019 and 12 October 2020. The circumstances in which the offences occurred are set out in the respective Statement of Facts (‘SOF’) filed with the Summonses, as supplemented by the material in the Tender Bundle (‘TB’). The SOF are summarised below.

3. The maximum penalty for the s 19 offence is $1,500,000, for the s 38 offence is $50,000 and for the s 46 offence is $100,000.

BACKGROUND

4. The defendant conducted a business or undertaking that involved supplying and installing roof guttering and associated products. Mr Paul Axford (‘Mr Axford’) is the sole director and secretary of the defendant.

5. The defendant entered into a Lead Referral Agreement with Aceline Plumbing Group Pty Limited (‘Aceline’) dated 28 June 2016 (‘Referral Agreement’). Aceline conducted a business that involved the installation of roof guttering and associated products.

6. Mr James Hogan (‘Mr Hogan’) undertook work installing roof guttering. Mr Hogan had worked for various entities controlled by Mr Axford for approximately 12 years, including Easy Fall. Mr Hogan was a sole trader. He was not an authorised person for the purposes of s 6 of the Plumbing and Drainage Act 2011 (NSW) in that he did not hold (i) an endorsed contractor licence or a supervisor certificate in force under the Home Building Act 1989 (NSW) authorising the holder to do that kind of work; or (ii) a tradesperson certificate in force under the Home Building Act 1989 (NSW) authorising the holder to do that work. Mr Hogan did not hold a licence as a builder, plumber or roof plumber issued by NSW Fair Trading.

7. Mr Hogan undertook installation work in relation to Easy Fall’s products under the licence held by Mr Sam Ayad (‘Mr Ayad’) the director of Aceline.

THE WORK

8. In early 2017, the defendant was engaged by Mr Peter Papadeas to replace the gutters at his property in Kangaroo Point (‘the property’). Mr Axford attended the property to market Easy Fall products to Mr Papadeas. Mr Axford took measurements in order to design the shape of the guttering and provide a quote for the work. Mr Axford inspected the various sides of the property and saw that the area at the rear/northern side of the property would be difficult to access.

9. Mr Axford told Mr Papadeas that he would provide a tradesman who would install the product. On or around 8 March 2018, Mr Papadeas received an email from Easy Fall with two separate invoices: one invoice for the materials and another for the installation.

10. The legal form of the arrangement for the supply and installation of the guttering at the property was set out in the following agreements:

1. Tax Invoice/Agreement for the supply of ‘Easy Fall Guttering’ between Easy Fall and Mr and Mrs Papadeas, signed by both parties and dated 8 March 2017 (‘Supply Agreement’); and

2. Tax Invoice/Installation Agreement between an ‘Installer To Be Agreed (TBA)’ and Mr and Mrs Papadeas signed only by Mr and Mrs Papadeas and dated 8 March 2017 (‘Installation Agreement’).

11. The Supply Agreement and Installation Agreement were in a similar format, although the Installation Agreement had the ‘Easy Fall Guttering’ header removed and noted that it detailed that the installer was “Sam, Aceline Plumbing Group Pty Ltd”. Both the Tax Invoice for the supply of the guttering and the Tax Invoice for the installation of the guttering were prepared by Mr Axford and provided to the Papadeas’ by Mr Axford.

12. Mr Papadeas was not given a choice of installers nor an opportunity to negotiate a price with the installer.

13. The lead was provided to Aceline by the defendant’s Operations Manager, Christian De Wet (‘Mr De Wet’) on 10 April 2017 and included a copy of the Installation Agreement and the Supply Agreement. The work relating to the installation at the property (‘the work’) was referred to Aceline by the defendant pursuant to the Referral Agreement.

14. On 12 April 2017, Mr De Wet sent an email to Mr Hogan which included a copy of the Installation Agreement signed by Mr Papadeas and the Supply Agreement. The email stated ‘This job should suit James [Hogan]’. Mr Hogan accepted the installation job at the property.

15. The only details that the defendant provided to Mr Hogan for the job was the Installation Agreement which included only a plan for the roof and no information about the site. Mr Hogan was not given any photographs of the site or an outline of the risks involved in undertaking the work.

16. Mr Hogan did not contact Mr Papadeas or otherwise enter into any agreement in relation to the installation of the Easy Fall guttering at the property with Mr Papadeas.

17. On or around 19 April 2017, Mr Hogan attended the property for the installation. This was the first time that Mr Papadeas had contact with Mr Hogan.

18. Mr Hogan expressed his safety concerns to Mr Papadeas, in particular that the north side of the house was going to be difficult to work on as it was the highest part of the guttering.

19. On or around 20 April 2017, Mr Hogan telephoned Mr De Wet and told him that he did not want to do the job as he was concerned about the rear section and how he could safely access the gutters. Mr De Wet told Mr Hogan to contact Mr Axford. Mr Hogan contacted Mr Axford and expressed his concerns.

20. Mr Axford attended the property with Mr Hogan to inspect the area where the work was to be done, and in particular to the awning section at the rear section of the property. Mr Axford did not provide Mr Hogan with any information or instruction as to a safe work method to implement while undertaking the installation of the guttering, and in particular, any instruction as to control measures to be implemented when working at heights, including the use of temporary work platforms.

THE INCIDENT

21. On 16 May 2017, Mr Hogan was installing the Easy Fall roof guttering at the property. Mr Hogan was working alone.

22. Mr Hogan was working at the rear/northern side of the property, where the base of the house was adjacent to a pool. To access the rear corner of the roof, Mr Hogan placed two planks across the pool to support a trestle, which supported one end of a third plank. An extension ladder with a ladder bracket was used to support the other end of the third plank. Mr Hogan used this as a makeshift platform. It was approximately two metres high.

23. Mr Hogan took off the timber fascia of the roof and installed the Easy Fall Guttering brackets and PVC gutter. Mr Hogan then attempted to lift a 7.5 metre length of steel into position when the trestle moved from underneath, causing him to fall to the concrete edge of the pool below.

24. Mr Hogan suffered serious injuries, including a spinal L3 burst fracture. He was admitted to St George Hospital where he underwent a lumbar fusion operation. Mr Hogan underwent major spinal surgery as a result of the injuries sustained by the fall. He was discharged from hospital on 30 May 2017.

25. After the incident, Mr Ayad completed the work on behalf of Easy Fall, after being pressured to do so by Mr Axford, on behalf of the defendant. Mr Ayad estimated that only 10 metres of guttering needed to be installed to complete the installation. Mr Ayad installed scaffolding to access the gutter line and hired a labourer to assist him to lift two 7.3 metre guttering pieces. Mr Ayad stated that the length of the pieces of guttering to be installed made the installation dangerous, as it required a number of experienced workers to carry and place the guttering as part of the installation.

NOTIFICATION

26. On 16 May 2017, Mr Hogan called Mr De Wet and notified him of the incident. On or around the same day, Mr De Wet called Mr Ayad and notified him of the incident.

27. The defendant did not, through Mr Axford or Mr De Wet, or by any other means, notify SafeWork NSW of the incident. SafeWork NSW became aware of the incident on 1 August 2017 when Mr Hogan lodged a Request for Service with SafeWork NSW.

THE DEFENDANT’S ROLE IN INSTALLATIONS

28. The defendant had an arrangement which required licensed installers, such as Aceline, to enter into Referral Agreements. Pursuant to these agreements, licensed plumbers were bound to comply with the terms and conditions set out therein when undertaking installations for the defendant.

29. The introductory provisions of the Referral Agreements specified the defendant as the manufacturer and supplier of the Easy Fall Guttering System and not an installer. It set out the process by which people who purchased products from the defendant (‘Leads’) would be referred as customers to an ‘Installer’ who was ‘a licensed plumber licensed to install guttering’. It also stated the defendant and installer intend to co-ordinate with one another on the terms and conditions of this Agreement.

30. The Referral Agreement also contained the following agreed provisions:

‘2. Easy Fall’s Obligations

2.1 Easy Fall may refer a Lead to Installer from time to time

2.2 Easy Fall will on referring a Lead to Installer:

a) co-ordinate and make initial contact with all Leads;

b) receive, collate and consider information concerning Leads;

c) qualify all prospective Leads before introducing Leads to Installer by verifying that each Lead wishes to be and satisfies the requirements to be, a Client of the Installer

d) complete and Installation Agreement for the Lead using the prices and charges contained in the Price Schedule

…

8. Independent Contractors

… For the sake of clarity and the record nothing in this Dead of Agreement creates any association between Easy Fall and the Installer. Easy Fall may refer Leads to the Installer and the Installer may turn the Lead into a Client.’

31. Clause 3.1 of the Referral Agreement required the installer to comply with work health and safety requirements specified by the defendant and to indemnify the defendant for all work health and safety claims.

32. Clauses 1.1 and 2.2(d) make reference to a ‘Price Schedule’ that set out the installation price the installers would receive. The defendant also provided installers with a step-by-step process on how to install Easy Fall Guttering.

33. Where an installer did not have a roof plumbing licence, they would work under an installer (such as Aceline) which did hold such a licence. An unlicensed installer would be paid approximately 90% of the installation price, with 10% commission going to the licensed installer who they worked under. This was paid directly by the customer and did not go through the defendant.

34. On at least one previous occasion (in May 2016), the defendant had provided one of its installers with scaffolding to install Easy Fall Guttering. Previously, scaffolding was available on the defendant’s premises for installers to use.

MR HOGAN AND THE DEFENDANT

35. When Mr Hogan commenced working for the defendant, he was trained by a builder who the defendant had trained in how to install the product. The defendant would sometimes send trainees to work under Mr Hogan or other installers, to assist in installing the product and learn how install it. Mr Hogan was directed by the defendant to work under Aceline’s licence. At the time of the incident, Mr Hogan had worked under Aceline’s licence for approximate three months.

OBLIGATIONS AND GUIDANCE MATERIAL

Work Health and Safety Regulation 2011

36. The defendant, along with Aceline and Mr Hogan, was required, under Regulations 34 to 38 of the Work Health and Safety Regulation 2011 (NSW) (‘the Regulation’), to:

1. identify reasonably foreseeable hazards that could give rise to a risk to health and safety;

2. eliminate identified risks so far as is reasonably practicable;

3. if it was not reasonably practicable to eliminate the risk, then minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control;

4. maintain implemented control measures so that they remained effective; and

5. review, and if necessary, revise, risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.

37. The defendant, along with Aceline and Mr Hogan, was required, under Regulation 39, to ensure that information, training and instruction provided to a worker was suitable and adequate, having regard to:

1. the nature of the work carried out by the worker;

2. the nature of the risks associated with the work at the time the information, training or instruction is provided; and

3. the control measures implemented.

38. The defendant, along with Aceline and Mr Hogan, was required, under Regulations 78 to 79, to manage/minimise risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

Code of Practice: Managing the Risk of Falls at Workplaces (2016)

39. Prior to the incident, the SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces (2016) (‘the Code’) was published and available. The Code provides practical guidance to persons conducting a business or undertaking on how to manage health and safety risks arising from falls.

40. The Code, among other things, outlines the safe use of ladders in the workplace, including:

1. Ladders must be set up on a stable and level surface.

2. The ladder should be secured against displacement (i.e. slipping or sliding).

3. The use of platforms supported by trestle ladders are only suited to light duty tasks, and are only suitable for use at heights above 2 metres where toe boards and guardrails are utilised. Alternatives to trestle ladders should be considered, such as light duty aluminium mobile scaffolds.

41. The Code outlines fall prevention devices, including temporary work platforms (including scaffolding). The Code outlines how to manage the risk of falls by providing guidance about how to identify hazards, assess the risk, control the risk and review control measures.

Work Health and Safety Act 2011 (NSW)

42. Section 46 of the Act provides:

‘Duty to consult with other duty holders

If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.’

43. Section 35 of the Act provides:

‘What is a “notifiable incident”

In this Act, notifiable incident means:

(a) the death of a person;

(b) a serious injury or illness of a person, or

(c) a dangerous incident.’

44. Section 36 of the Act provides:

‘What is a “serious injury or illness”

In this Part, serious injury or illness of a person means an injury or illness requiring the person to have:

(a)   immediate treatment as an in-patient in hospital, or

(b)   immediate treatment for:

…

(vi) a spinal injury, or

…

and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.’

45. Section 38 of the Act provides:

‘Duty to notify of notifiable incidents

(1)   A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

(2)   The notice must be given in accordance with this section and by the fastest possible means.

(3)   The notice must be given:

(a)   by telephone; or

(b)    in writing.’

SYSTEMS OF WORK PRIOR TO THE INCIDENT

46. At all material times the defendant had a duty under s 19(1) of the Act, to ensure so far as reasonably practicable, the health and safety of workers, in particular Mr Hogan, while they were at work in the business or undertaking, and in particular, in respect to the installation of roof guttering at the incident site.

46. The full detail of the defendant’s admitted failures to comply with its duty under s 19(1) are contained in paragraphs 18(a)-(c) in the Amended Summons and are as follows:

• Require that Aceline and/or Mr Hogan conduct, document and provide to it for its assessment as to its adequacy a risk assessment with regard to the installation of roof guttering at the site;

• Require that Aceline and/or Mr Hogan provide details of the control measures to be implemented in respect of the risk of falls at the site; and

• Providing information to Mr Hogan with the respect to the control measures to be implemented in working at height and in particular the use of temporary or mobile scaffolding.

48. The pleaded measures admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, in breach of its duty under s 19(1) of the Act.

49. The incident was a notifiable incident within the meaning of s 35 of the Act in that Mr Hogan suffered a serious injury as defined by s 36 of the Act, namely an injury requiring him to have immediate treatment for a spinal injury that arose out of the conduct of the defendant’s business or undertaking. The defendant failed to notify the Regulator, SafeWork NSW, immediately after becoming aware of the incident.

50. Under s 46 of the Act, the defendant was required to consult, cooperate or coordinate activities with Aceline and/or Mr Hogan as other persons who had duties in relation to the work at the property. The defendant failed to do so, and in particular, the defendant did not:

1. consult with Aceline and Mr Hogan about the hazard(s) and risk(s) associated with the installation of the roof guttering, including the risk of falling from heights;

2. consult with Aceline and Mr Hogan about the control measures that should be implemented to control the risk of falling from heights, and in particular the use of temporary work platforms such as temporary or mobile scaffolding from which to undertake the work at the site;

3. cooperate with Aceline and Mr Hogan in relation to arranging for the provision of temporary work platforms such as temporary or mobile scaffolding from which to undertake the work at the site;

4. coordinate with Aceline and Mr Hogan in relation to the provision of an additional worker to assist with the installation of lengths of guttering that were required to be installed by workers while working at heights at the site;

5. coordinate with Aceline and Mr Hogan by planning and organising the method of work pursuant to which the installation of roof guttering at the site should be undertaken, including that the installation of lengths of guttering that were required to be installed by workers while working at heights at the site be undertaken by more than one worker, while working from a temporary work platform such as temporary or mobile scaffolding.

51. Despite the fact that it was required under the Referral Agreement to do so, the defendant whilst having visited the site at the request of Mr Hogan and after Mr Hogan indicated his concerns as to how the work was to be performed safely, did not undertake a risk assessment prior to the incident or the work being commenced.

52. The defendant did not require that a risk assessment be conducted and documented by Aceline or Mr Hogan in relation to the work which was in accordance with Regulations 34 to 38.

53. Neither the defendant nor Aceline provided to Mr Hogan sufficient details of the property or the hazards associated with the work prior to commencement of the work.

54. In circumstances where it had been identified that the installation of roof guttering would involve work being performed at heights, the defendant did not require Aceline or Mr Hogan to provide details of the control measures to be implemented, including the use of the temporary work platforms such as temporary or mobile scaffolding from which the work could safely be performed. The defendant had scaffolding and safety equipment available to it and had been used on other installation jobs. Despite this, the defendant failed to provide information to Mr Hogan in relation to the control measures to be taken when working at heights.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

55. There is no evidence before me that the defendant took any steps to address its significant failings immediately after the incident. In fact, Mr Axford deposes in his second affidavit (Exhibit B) at paragraph 52 that action to prevent exposing workers to risk was not taken until the commencement of these proceedings, which I assume means the date of the filing of the Summons in September 2019, more than two years after the incident. The defendant’s Workplace Health & Safety Management System (Annexure PA15 to Exhibit B) seemingly was created in May 2020. The SWMS (Annexure PA13 to Exhibit B) is dated 15.02.2020. The defendant’s Consultation document (Annexure PA14 to Exhibit B) is dated 30.10.19. All other WH&S documents attached to Exhibit B pre-date the incident. It seems to me that the defendant only turned its mind to redressing the situation after it was being prosecuted by SafeWork.

56. At paragraphs 15, 16 and 17 of Exhibit B, and further at paragraphs 47-50, Mr Axford details the steps that he on behalf of the defendant has taken to change the business model of the defendant and effectively distance itself from the installation process. At paragraphs 38 and 39 of Exhibit B Mr Axford deposes as follows:

‘I tried to ensure that Easy Fall’s business operated on a day-to-day basis in the manner contemplated by the lead referral agreement; with Easy Fall generally keeping clear of any involvement in the gutter installation work. I wanted the licenced installers to take responsibility for the work and be directly accountable to the customer.

However, under this new business model, I accept that, in some respects, I allowed Easy Fall to remain involved in the process of installation.’

57. Paragraph 18 indicates that the defendant had stepped back from the installation of the guttering since the inception of Easy Fall in June 2011. This completely flies in the face of the legal form of the arrangement for the supply and installation of the guttering at properties, which was set out in the following agreements (Tab 11 and 12 of the TB):

1. Tax Invoice/Agreement for the supply of “Easy Fall Guttering” between EFG and Mr and Mrs Papadeas, signed by both parties and dated 8 March 2017 (the Supply Agreement); and

2. Tax Invoice/Installation Agreement between an “Installer To Be Agreed (TBA) and Mr and Mrs Papadeas signed only by Mr and Mrs Papadeas dated 8 March 2017 (the Installation Agreement).

58. The Installation agreement was prepared and provided to Mr and Mrs Papadeas by the defendant. The warranty attached to the supply agreement states as follows:

‘This warranty is void if the EASY FALL Guttering is not installed to specification or if the leaf guard is not cleaned of excess debris as required to stop water pooling in the leaf guard and or if anybody attempts to do any work on the product other than a technician authorised (sic) EASY FALL Guttering Pty Ltd.’ (emphasis added)

59. It seems to me that the defendant is trying now to divorce itself from the installation of the guttering so as to excuse its work health and safety (‘WHS’) failures. This separation is not able to be reconciled with the term of the warranty quoted above, and the installation agreement having been prepared by and delivered to the customer by the defendant.

60. It was submitted by Senior Counsel for the defendant that a critical issue for the purpose of sentencing, is that Mr Axford proceeded under the mistaken, but nonetheless genuinely-held understanding, that Aceline, and not the defendant, was responsible for the health and safety of those performing the installation work.

61. In Ostrowski v Palmer [2004] HCA 30 at [2], Gleeson CJ & Kirby J observed as follows:

‘Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.’

62. Similarly, in relation to the defendant’s belief that it did not have responsibilities under the Act, Glynn J in WorkCover Authority of NSW (Inspector Tyler) v P&D Coachworks Pty Ltd [2000] NSWIRComm 80 [46] observed that:

‘Whilst ignorance is not an answer on the guilt or otherwise, it is relevant on the question of culpability.’

63. In this circumstance, Mr Hogan was undertaking work that arose from the defendant entering into a supply agreement with its customer, and through an Installation Agreement that it had prepared, and had been referred under the Referral Agreement to Aceline. Therefore, the defendant should have taken steps to require Aceline and/or Mr Hogan to conduct, document and provide to it, for its assessment as to its adequacy, a risk assessment in relation to the installation of the guttering. It has admitted such by its plea of guilty.

64. Moreover, as Mr Axford had attended the site before the work commenced it must have been glaringly obvious to Mr Axford that a risk assessment was essential, particularly having regard to the difficulties installing at the site, and in particular the risk of falling from height. The failure to do so is particularly egregious when Mr Hogan had told Mr Axford that he did not want to do the job as he viewed it as too dangerous. Whilst I accept that the evidence of Mr Axford is unchallenged, I find it completely implausible that he was not aware of his WHS obligations and I have not diminished the culpability of the defendant on that basis.

SENTENCING

65. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ‘ensuring the safety, health and welfare of workers and others on workplace premises’: s 3 of the Act.

66. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions;

6. to recognise the harm done to the victim of the crime and the community.

67. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3 of the Act.

68. The court is to be guided by the provisions of the Sentencing Act which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

69. The court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.

70. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way:

‘The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.’

71. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89].

OBJECTIVE SERIOUSNESS OF THE OFFENCE

72. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474—5.

73. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714].

74. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen [2012] VSCA 82 at [62]; Veen v R (No 2) (1988) 164 CLR 465.

75. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No 3) [2005] NSWIRComm 61.

76. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]—[18] (Latham J).

FAILURE TO COMPLY WITH DUTY TO ENSURE SO FAR AS REASONABLY PRACTICABLE THE HEALTH AND SAFETY OF WORKERS – s 19

77. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns J).

78. The risks associated with the installation work at the incident site, and in particular the risk of falls from height whilst installing roof guttering, was a foreseeable one, and it was one in these circumstances known to the defendant, through Mr Axford.

79. Mr Hogan had informed Mr Axford that he thought doing the part of the job where he fell was too dangerous. He did not want to do the job for that reason. Mr Axford attended the site and observed where and how the work was to be done. The foreseeability of the risk would have been clear, blindingly so. Despite this Mr Axford did absolutely nothing at ensure the safety of workers, and in particular Mr Hogan.

80. In circumstances where Mr Hogan was working installing the defendant’s product, was recommended for the job by the defendant (see email Tab 20 of TB), and the defendant was aware of the obvious danger, the defendant should have taken steps to consult with Aceline and Mr Hogan about the hazards and risks relevant to the installation of the guttering at the incident site, and in particular the risk of falls from heights.

81. An examination of the photographs in the TB clearly demonstrates that the manner in which Mr Hogan was to perform his task was precarious. The ladder that he was on the top of was placed over some beams that he had placed across the swimming pool. He was replacing guttering on the second storey of the dwelling. He was doing so on top of a ladder, and single-handedly manoeuvring a piece of guttering that was 7.5 metres long. There is, to my mind, no possible way that anyone who was observing and co-ordinating these works could not have seen that this was an extremely dangerous operation, and one that should have been expressly prohibited.

82. It ought to have been obvious to the defendant that there was a requirement for control measures to be implemented to control the risk of falling from heights. Simple measures such as the use of a temporary work platform or mobile scaffolding from which to undertake the work may have eliminated the risk, or at least minimised it. The defendant had such appropriate scaffolding (see SAF [45]—[46]), and should have co-operated with Aceline and Mr Hogan to arrange for such equipment to be available, and ensured its use.

CONSULTATION, CO-OPERATION AND CO-ORDINATION – s 46

83. The Work Health and Safety Consultation, Co-operation and Coordination Code of Practice dated December 2011 (‘Consultation CoP’) (TB at Tab 11) details why consultation is important and an essential part of managing health and safety risks.

84. The Consultation CoP also provides guidance in relation to the importance in managing risks at cl 2.1, and guidance in relation to how to consult, co-operate and co-ordinate activities with other duty holders in Part 5.

85. In particular the Consultation CoP notes that co-operating and co-ordinating activities with others who are involved in work or things associated with work will make the control of risks more likely and assist each duty holder to comply with their duty. It can also mean that health and safety measures are more efficiently undertaken.

86. In respect of the activities that were the subject of the incident, the work relating to the installation at the property was referred by the defendant to Aceline pursuant to the Referral Agreement. The Referral Agreement required Aceline to comply with work, health and safety requirements for the referred work.

87. It was, or ought to have been apparent to the defendant that the installation of 7.5 metre lengths of guttering at heights of more than 2 metres at the site would have required more than one worker to be undertaken safely. It should have been glaringly obvious to the defendant that this work was inherently dangerous and it should have co-ordinated with Aceline and Mr Hogan to provide an additional worker and appropriate risk assessments and ensured that the simple measures that were available were made available and used.

88. It would have been impossible for the defendant to not have foreseen that there was a significant risk that the worker could fall from height and suffer fatal or serious injuries.

89. The defendant failed to:

1. Direct or check that a risk assessment had been conducted and documented by Aceline or Mr Hogan;

2. Take any steps to assess whether Aceline or Mr Hogan had undertaken a risk assessment in relation to the installation of the roof guttering;

3. Take any steps to inform itself of the hazards and risks associated with the installation of the roof guttering, including the risks of falling from heights;

4. Take any steps to assess the hazards and risks, or the appropriate control measures that should be implemented to control the risks;

5. Provide Mr Hogan with sufficient details of the site, or of the hazards associated with the work, to enable him to safely undertake the work;

6. Devise and implement a safe work procedure for the task of installing roof guttering; and

7. Confirm with Aceline or Mr Hogan prior to the commencement of the work that appropriate control measures were in place.

90. Instead, it was left to Mr Hogan to construct a makeshift work platform to attempt to install lengths of roof guttering at heights of over 2 metres.

91. I do however accept that the s 46 breaches to some extent overlap with the s 19 breaches. Whilst I will sentence the defendant separately for each offence, I will have regard to the overlap, and ensure that the totality principle is reflected in the overall fine.

92. The defendant was represented by its sole director, Mr Axford. Mr Axford swore two affidavits (Exhibits A and B respectively) which were read. Mr Axford did not give oral evidence, and as such the evidence contained in the affidavits is uncontested.

93. In Exhibits A and B, Mr Axford attempts to defend the defendant’s breaches on the basis that he did not know that the defendant was responsible for the health and safety of those workers performing the installation of the guttering.

FAILURE TO NOTIFY – s 38

94. Of critical importance is the fact that the defendant failed to notify SafeWork of the incident at all. SafeWork were only notified of an incident having occurred when they were contacted by Mr Hogan, the injured worker, on 1 August 2017, some 2 ½ months after the incident. Mr Hogan notified Mr De Wet, the defendant’s operations manager of the incident on the day it happened. The defendant did not report the incident.

94. The defendant as an organisation that operates in the industry, as part of its business or undertaking, should have known of its obligations to notify SafeWork as required under the Act.

95. The failure to notify SafeWork is a significant failure as it can adversely impact on the ability of SafeWork to undertake its investigation into any potential breaches of the Act by duty holders, and to observe the site, interview witnesses and obtain relevant documents. Non-compliance with the duty to notify frustrates the investigation of the incident.

96. The defendant has offered a bizarre explanation as to why it did not notify SafeWork, in circumstances where it knew of the incident and of the serious injuries sustained by Mr Hogan (Exhibit B [43]) the following;

‘My belief was also based on information given to me by my wife who used to work in the NSW hospital system. My wife had informed me that hospitals were not permitted to discharge a patient involved in a workplace accident unless WorkCover/SafeWork had been notified by the patient’s employer and that it was hospital policy that medical/nursing staff had to sign off that such notification had occurred prior to the patient’s discharge. Based on this information, I believed that the attending medical/nursing staff who were responsible for James Hogan at the hospital would also ensure that the incident had been reported to SafeWork NSW by Sam Ayyad of Aceline piror to James’ discharge.’

98. I note that the evidence given by Mr Axford is uncontested, even so I find this explanation very hard to believe. At all times the defendant, through Mr Axford, has denied knowledge of his relevant WHS obligations, or assumed that someone else would comply with such obligations without ever checking to see that that in fact be the case.

99. It is submitted on the defendant’s behalf that Mr Axford suffered from a mistaken belief that the defendant’s WHS obligations did not extend to the installation work, and as such this is a relevant factor to be considered for sentencing purposes.

100. Similarly, the defendant through Mr Axford’s affidavits seems to want to distance the defendant’s conduct on the basis that it did not know of its obligations to under the Act. The only real step since the incident that the defendant has taken, is to change its business model – something that it has apparently been trying to do since 2011.

101. Given the defendant’s conduct (or lack thereof) immediately after the incident, and as there is no evidence before me that the defendant took any steps to improve the safety of any workers installing its guttering, I find the defendant’s excuse that it did not know of its obligations to workers completely implausible. It seems to me the only time the defendant took seriously its WHS obligations was when it was prosecuted. At that point in time, documents were created and steps taken to address its breaches. Prior to that, and crucially at the day Mr Axford inspected the worksite, he showed absolutely no regard at all for the safety of installers of the defendant’s product.

DETERRENCE

102. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

103. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388

104. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.

105. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]—[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at which said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

‘[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

106. General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons working in at heights, and on ladders, is very concerning.

107. Workers being subjected to a risk of serious injury or death as a result of falling from height is not unique to the circumstances of this defendant. The imposition of a component directed towards general deterrence, it is hoped, will highlight the need to other corporations and individuals of the need for proper planning and development of procedures to eliminate, or at the very least severely minimise the presentation of such a risk.

108. Similarly, general deterrence can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with working unsupervised at height in an industrial context.

109. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

110. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

111. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]—[242]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.’

‘The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald’s at 437. Such an analysis may assist in understanding the reasonableness of the defendants’ actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]).’

112. I find that the defendant’s actions and words since the incident do not give me any great comfort that the offending will not reoccur. However, I note that the defendant has now developed a new Ladder Scaffold System which has been approved by experts in the field, and will hopefully prevent the worringly high number of falls from height in the building and construction industry. To this end, whilst specific deterrence is relevant to this defendant, it does not stand in my mind as a significant factor.

AGGRAVATING FACTORS

113. The injuries sustained by Mr Hogan were significant: s 21A(2)(g) of the Sentencing Act. I have had regard to his victim impact statement and can see that he is facing significant disabilities and ongoing suffering. This suffering is worsened as the injuries were sustained in circumstances where Mr Hogan informed the defendant through Mr Axford that he did not want to do the job because it was unsafe.

MITIGATING FACTORS

114. The defendant has no record of previous convictions: s 21A(3)(e) of the Sentencing Act.

115. In his affidavit Mr Axford expresses his remorse and contrition (Exhibit B [21] [60]).

116. Section 21A(3)(i) of the Sentencing Act provides that ‘remorse’ may be taken into account as a mitigating fact if:

‘… the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions made reparation for such injury, loss or damage (or both).’

117. As previously stated, I am somewhat sceptical of the defendant’s remorse and contrition. It is evident that the defendant realistically did nothing before the incident to protect a worker from an obvious risk, identified to him by the worker. Nor was anything significant done after the incident to protect the safety of workers, until the defendant was prosecuted. I afford the defendant limited leniency under s 21A(3)(i).

118. The defendant entered pleas of guilty reasonably early, and thus I will allow the deduction of 25% for the utilitarian value of the pleas: s 22 of the Sentencing Act.

CAPACITY TO PAY

119. The defendant has raised the issue of their ability to pay any fine due to the financial circumstances of the defendant, and therefore makes an application under the s 6 of the Fines Act 1996 (NSW). The defendant through its learned Senior Counsel seeks a reduction of the fine to be imposed on the basis of its limited ability to pay, but accepts that it bears the evidentiary onus in establishing that I should exercise this discretion in its favour.

120. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266, the Court of Criminal Appeal held as follows:

‘First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant: a fine which may be crippling to a small business may have virtually no impact on the operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.’

121. Nonetheless, the onus is on the defendant to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of a penalty: McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310 at [24]. The offender’s capacity to pay in relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16].

122. It is for the defendant to place detailed financial information that fully discloses the company’s financial circumstances to the Court so as a proper assessment of its capacity to pay can be examined. However, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must be reflective of the objective seriousness of the offence.

123. Mr Axford, in his affidavits raises matters that he asks the court to consider as to the penalty, and the effect that it may have on himself, the defendant and his family.

124. The material attached to Exhibit A and B would indicate that the defendant is not a large company, and one of reasonably modest assets. However, at paragraph 17 of Exhibit A, Mr Axford on behalf of the defendant states that sales revenue, despite the pandemic is down approximately 10%. I do not see that as a significant diminution of the businesses earnings. Whilst I accept the business is not able to obtain future loans to pay a fine, this must be assessed in circumstances where the defendant has created a new scaffold system ladder, which it submits will have significant advantages over conventional scaffolding. This may well prove to be an income source for the company, however I have not assumed that to be so.

125. The fact that I have previously sentenced Aceline has been referred to in these sentencing submissions. The defendant submits that they are far less culpable than Aceline, and the Prosecutor submits that for reasons of parity, similar penalties ought be imposed.

126. Aceline was not charged with an offence under s 19(1). Having indicated that I accept that there is a significant degree of overlap for this defendant given the s 46 and s 19 charges, that will be reflected in my decision. However, on the basis of parity, I do not see that this defendant ought receive any less penalty than Aceline for the s 38 offence. Accepting that overlay between the s 46 offence and the s 19 offence, I have taken that into consideration with regard to the totality of the fine imposed.

127. I accept that payment of a fine might be difficult for the defendant, and have been mindful of that in coming to my determination. However, the objective seriousness of the offences are such that it must be reflected in the penalty, and significant fines must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly because the defendant will have difficulty paying it, would not provide the appropriate level of specific and general deterrence that is expected given the circumstances of this offending.

128. Having taken into account the submissions with regard to difficulties that may be posed by the payment of a significant fine, and on that basis, I will not order the defendant to pay the prosecutor’s costs.

129. The appropriate fine of the s 19 offence is $300,000.00. The defendant is entitled to a discount of 25% for the early plea.

130. The appropriate fine the s 38 offence is $40,000.00. The defendant is entitled to a discount of 25% for the early plea.

131. The appropriate fine for the s 46 offence is $40,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

132. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the s 19 offence is $300,000.00 and that will be reduced by 25% to reflect the early plea.

3. Accordingly, I order the defendant pay a fine of $225,000.00.

4. The appropriate fine for the s 38 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty.

5. Accordingly, I order the defendant to pay a fine of $30,000.00.

6. The appropriate fine for the s 46 offence is $40,000.00 and that will be reduced by 25% to reflect a plea of guilty.

7. Accordingly, I order the defendant pay a fine of $30,000.00.

8. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

9. I make no order as to costs.

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Amendments

05 March 2021 - Jurisdiction amended from Civil to Criminal

Decision last updated: 05 March 2021