SafeWork NSW v Evolve Roofing Pty Ltd

[2023] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75

Hearing dates:

22 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Evolve Roofing Pty Ltd is convicted.

(2)   The appropriate fine is $400,000 but that will be reduced by 25% to $300,000 to reflect the early plea of guilty, and further reduced to $150,000 by reason of capacity to pay.

(3)   Order Evolve Roofing Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Evolve Roofing Pty Ltd to pay the prosecutor’s 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 – specific deterrence – capacity to pay appropriate penalty

SENTENCE – general deterrence – failure to take simple and effective precautions to stop falls – carnage in the roofing industry

COSTS – prosecution costs

OTHER – defendant engaged to replace roof – worker stepped backwards onto fragile skylight – fell nine metres to ground below

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW), reg 78

Cases Cited:

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

Texts Cited:

SafeWork Australia Information Sheet, Safe Work on Roofs, dated January 2016

SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, dated August 2019

SafeWork NSW Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, dated 2009

SafeWork NSW, Construction Falls from Heights Blitz Checklist

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Evolve Roofing Pty Ltd (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
N Read (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Thompson Cooper Lawyers Pty Ltd (Defendant)

File Number(s):

2021/322196

Judgment

Introduction

1. The roofing industry is dangerous if simple and effective safety precautions are not taken. The following table of roofing falls cases heard in this court lists the deaths or injuries which resulted:

[2023] NSWDC 56	SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney	Fractured skull, two broken wrists, a cracked ear bone and two cracked ribs.
[2023] NSWDC 13	SafeWork NSW v Parrish Group NSW Pty Ltd	Right foot fracture and dislocation, a left shoulder dislocation and an L5 vertebral compression fracture.
[2022] NSWDC 524	SafeWork NSW v Leda Form Group Pty Ltd	Death.
[2022] NSWDC 526	SafeWork NSW v LJW Solar Pty Ltd	Burst fracture and left interior pubic ramus (pelvis) fracture.
[2022] NSWDC 437	SafeWork NSW v Empire Contracting Pty Ltd	Death.
[2022] NSWDC 407	SafeWork NSW v Advanced Roofing Sydney Pty Ltd	Multiple traumatic injuries to upper limbs, lower limbs and face.
[2022] NSWDC 290	SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse	Fractured rib, multiple pelvic fractures and a fractured wrist.
[2022] NSWDC 175; [2021] NSWDC 707	SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd; SafeWork NSW v Lewin Roofing Pty Ltd	Three vertebrae fractures in neck, fractured skull, subdural/extradural haematoma to brain and T2 endplate fractures.
[2021] NSWDC 258	SafeWork NSW v PV Solar Pro Pty Ltd	Death.
[2021] NSWDC 86; [2020] NSWDC 776	SafeWork NSW v CCP Remedial Pty Ltd; SafeWork NSW v MACFIN Building Solutions Pty Ltd	Death.
[2021] NSWDC 44; [2020] NSWDC 774	SafeWork NSW v Easy Fall Guttering Pty Limited; SafeWork NSW v Aceline Plumbing Group Pty Ltd	Serious spinal injuries.
[2020] NSWDC 420	SafeWork NSW v Landmark Roofing Pty Ltd (No.2)	Death.
[2020] NSWCCA 319	Attorney General v Jamestrong Packaging Australia Pty Ltd	Death.
[2018] NSWDC 387	SafeWork NSW v The Austral Brick Co Pty Limited	Death.
[2018] NSWDC 350	SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous	Death.
[2018] NSWDC 61	Safe Work NSW v Co-Wynn Building Contractors Pty Ltd	Death.
[2018] NSWDC 104; [2017] NSWDC 285	SafeWork NSW v Powell; SafeWork NSW v Tolputt	Fractured shoulder.
[2018] NSWDC 60	Safe Work NSW v Christopher Michael Butler; Safe Work NSW v Edgesafe Pty Ltd	Neck, back and wrist fractures, bowel tear and spleen laceration.
[2017] NSWDC 340	SafeWork NSW v CTN Construction Pty Limited	Traumatic brain injury, fractures to skull and facial bones, punctured lung, fractured collarbone and minor neck fractures.
[2015] NSWDC 295	Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam	Fracture to the spine causing spinal cord damage and tetraplegia.
[2014] NSWDC 183	WorkCover Authority of NSW v Australian Native Landscapes	Fractured left pelvis, two punctured lungs, four fractures of left arm and cuts and abrasions to head.

2. Evolve Roofing Pty Ltd (Evolve) was engaged to replace the roof of a school gymnasium. While on the roof a worker stepped backwards and fell nine metres through a skylight onto the floor below.

3. Evolve has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed workers, in particular Mr Grant Ible, to a risk of death or serious injury contrary to s 32 of the Act.

4. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

5. The risk described in par 11 of the Amended Summons filed on 21 November 2022 is as follows:

“11.    The risk was the risk to workers, in particular Mr Ible, suffering serious injury or death as a result of falling from height while working on the roof at the site.”

Reasonably Practicable Measures

6. Paragraph 12 of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“12.   The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Mr Ible, in that it failed to take one or more of the following reasonably practicable measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

a.   Confirming workers who would be undertaking the task were provided with and used a fall-arrest system, such as a harness attached to an appropriate safety/static line and/or anchor point throughout the process of performing work on the roof;

b.   Instructing workers not to work on the roof unless they were using the fall restraint system identified at (a) above and/or supervising them to confirm that work on the roof was stopped immediately if work was being performed without the use of the fall restraint system;

c.   In the alternative to 12(a) above, providing and installing safety netting underneath the skylights and/or covers over the skylights structurally capable of supporting persons, to protect against the risk of falls prior to the commencement of work on the roof;

d.   Inducting the Metro Crane workers, into the Safe Work Method Statement Roof - Metal Sheeting dated 29 November 2019; and

e.   Making reasonable enquiries of Metro Cranes to confirm that Metro Cranes had:

i.   developed a system of work for working on the roof that required the use of harnesses attached to anchor points at all times; and

ii.   an adequate number of workers available with working at heights training to undertake the work.”

7. By its plea of guilty entered on 21 November 2022, Evolve has admitted all matters pleaded in the Amended Summons and the Agreed Statement of Facts.

Background

8. The parties presented an Agreed Statement of Facts (PX 1, Tab 2) which is summarised below.

9. Evolve operated a business that installed metal roofing on residential and commercial buildings. Mr Nathan Rees was the sole director.

10. On 30 November 2019 Evolve was engaged by the Presbyterian Ladies College Sydney (the School) to replace the roof of its gymnasium. The arrangement was that for the period in which Evolve was undertaking the roofing work, it would have exclusive control of the area around the gymnasium, including matters pertaining to health and safety.

11. Evolve subcontracted Metro Crane Services Pty Ltd (Metro Crane) to provide, set up and operate a 100-tonne mobile hire crane, to load roof sheets and other roofing material onto the existing roof of the gymnasium. Evolve employees would then fit and fix the roof sheets and materials to complete the job.

12. Evolve employed Mr Adam Rees and Mr Wade Taylor to perform work at the site.

13. Mr Adam Rees was a qualified plumber. He had been working with Evolve for five years, commencing as an apprentice. He had received working at heights training.

14. Mr Taylor had been working for Evolve for about four or five years. He had not received working at heights training. Mr Taylor was on site to provide information to the dogman about the loads to be lifted.

15. Metro Crane employed the following workers to perform work at the site:

1. Mr Grant Ible, dogman.

2. Mr Craig Truscott, lead dogman.

3. Mr Leonard Bailey, crane operator.

16. Mr Ible had been working with Metro Crane for 18 months prior to the incident. He had not worked with cranes prior to working with Metro Crane. He held a General Construction Induction Training Card Licence and a High Risk Work Licence in relation to licence classes DG (Dogging) and HR (Heavy Rigid) Truck. Mr Ible had not received any training for working at heights. Mr Ible had previously undertaken dogging work for craning roof sheets and roof material onto roofs. He did this on average once a week for the 18 months that he worked for Metro Crane. Mr Ible had previously used a harness when undertaking work on roofs.

17. Mr Truscott had been employed with Metro Crane from March 2017 and had worked in the crane industry for 17 years, including craning up roof sheets and roof materials. Mr Truscott had received working at heights training.

18. Mr Bailey had been working with Metro Crane for approximately 13 months and had worked as a dogman for over 10 years.

The Proposed Work

19. The proposed work involved removal of existing roofing sheets and skylights from the gymnasium roof. The roof was 40 metres in length and 30 metres wide with a central ridge. The roof was approximately 10-13 metres above the ground. The roof had 12 skylight bays with 5 skylights in each bay, which were made of a translucent polycarbonate material and measured approximately 60 cm to 1 metre wide, and 7 metres long.

20. The roof sheets were to be replaced with new Colorbond sheets that were 22 metres long and would be lifted onto the roof via the crane supplied by Metro Crane. The skylights were to be replaced with “web glass” containing safety mesh.

21. The roof had pre-existing anchor points installed and a safety mesh underneath it. The roof could only be accessed through a window on the second floor of an adjacent building. An anchor point was positioned outside the window. There was no safety railing or edge protection to access the roof from the window. In accordance with Evolve’s recommendation, a permanent guardrail along the exposed edge of the roof was to be installed to provide safe access to the roof. The existing anchor points were to be moved to accommodate installation of solar panelling.

22. The materials were to be delivered on site on 6 December 2019 and works were to begin on 20 December 2019.

The Incident

23. On 6 December 2019 Mr Nathan Rees and Mr Adam Rees arrived at the site at 6.30am. Mr Taylor arrived shortly afterwards. Mr Nathan Rees attended the site to go through Evolve’s Safe Work Method Statement (SWMS) with Mr Adam Rees and Mr Taylor. No-one from Metro Crane was on site at the time.

24. Mr Nathan Rees and Mr Adam Rees discussed the SWMS and the work for the day. Mr Nathan Rees told Mr Adam Rees to wear a harness. Mr Adam Rees and Mr Taylor signed the SWMS and Job Safety Analysis (JSA). Mr Nathan Rees instructed Mr Taylor to work on the ground assisting the dogman. Mr Nathan Rees left the site prior to the Metro Crane employees arriving to commence work.

25. The Metro Crane employees arrived at approximately 7.00am. The Metro Crane employees did not see Evolve’s SWMS or any other safety documentation produced by or for Evolve. Mr Adam Rees did not think that the Metro Crane employees needed to see Evolve’s SWMS as he assumed that Metro Crane would have its own.

26. Mr Adam Rees went through the job with the Metro Crane workers. Mr Ible was to undertake dogging work from the roof.

27. The Metro Crane crew set up the crane, which took approximately an hour and a half. Once the crane was set up, the Metro Crane crew began unloading the roof materials, preparing to lift them onto the roof. Mr Bailey and Mr Adam Rees looked at the roof from the window and Mr Bailey considered that there was enough room to land the sheets while ensuring that everyone on the roof was at a safe distance from the skylights.

28. Mr Adam Rees decided that the roof sheets could not be placed directly in the middle of the skylight bays due to the presence of eye bolt harness points. He decided that the loads should be landed on one side of the skylight bays, and while the loads were being landed, he would stand between the roof sheets and the skylight bays. He considered that he did not need to wear a harness as he would not be working near the live edges of the skylights.

29. Once the crane was set up, Mr Adam Rees and Mr Ible accessed the roof using the window of the adjacent building. Neither of them were wearing harnesses. Mr Taylor remained on the ground with Mr Truscott, who acted as a ground dogman, attaching the loads before they were raised up to the roof. Mr Bailey was operating the crane.

30. Mr Adam Rees instructed Mr Ible where the roof sheeting should be landed, which Mr Ible then communicated via radio to the Metro Crane workers on the ground.

31. Approximately 8-10 loads of roofing sheets had been placed on the roof before lunch. These sheets were placed across the roof at intervals of approximately 7 metres.

32. After lunch Mr Adam Rees and Mr Ible returned to the roof to load the remaining roof sheets, as well as bags of insulation wool. Mr Ible guided Mr Bailey over the radio as he landed bags of insulation wool.

33. At approximately 2.15pm, a bundle of 10 bags of insulation wool was being lifted onto the roof using double slings. Mr Ible was standing in close proximity to a skylight bay. As the load was being lifted, Mr Adam Rees walked across the roof toward Mr Ible, near where the load would be landed. He directed Mr Bailey to land the load. At this point, the wind had picked up causing the bundle of insulation bags to swing toward Mr Ible, who was standing near the ridge of the roof. Mr Adam Rees and Mr Ible both tried to grab the bundle to stop it swinging toward Mr Ible. Mr Ible stepped backward onto a skylight and fell through it and onto the gymnasium floor 9 metres below.

34. Mr Ible sustained the following injuries:

1. Extradural haemorrhage, intraparenchymal haemorrhage, left frontal lobe and high intracranial pressure.

2. Bilateral LeFort 2 fracture of the skull.

3. Left eye retrobulbar haematoma.

4. Left pneumothorax with bilateral pleural effusions.

5. Ruptured splenic artery and splenic laceration, requiring splenectomy.

6. Distal pancreatic injury, requiring distal pancreatectomy.

7. Pelvic fractures (minimally displaced left inferior pubic ramus, left iliac wing and left sacral ala).

35. Mr Ible returned to Metro Crane on light duties 12 months after the incident. However, he underwent a shoulder reconstruction in November 2021 and has not yet been able to return to work.

Systems of Work Prior to the Incident

36. Neither Mr Adam Rees nor Mr Ible were wearing harnesses when accessing the roof or while working on the roof. There were two harnesses available on site at the time of the incident. Mr Ible had looked for a harness in the crane but could not find one.

37. Mr Adam Rees claimed that he informed Mr Ible that there was no safety mesh under the skylights and that Mr Ible declined his offer of a harness, saying that he would just work “around” the skylights. Mr Ible claimed that he was not told to wear a harness by anyone on site, including Mr Adam Rees, and that he was not told of the lack of safety mesh underneath the skylights. There are thus no agreed facts in relation to such matters.

38. Mr Ible observed that while there were anchor points on the roof upon which he could hook a harness, there were no static lines between the anchor points. This meant that had he been using a harness, when he was required to move from one anchor point to the next, he would have had to walk some distance with his harness unhooked.

39. Evolve did not ask whether the Metro Crane workers had access to their own harnesses or ensure that Metro Crane workers were instructed to wear harnesses when working on the roof. Evolve did not confirm that the workers at Metro Crane who were to be working from height had appropriate training. Metro Crane had provided working at height training to some of its workers, but not all of them. Mr Ible had not received working from height training.

40. Prior to commencing work at the site, Evolve provided the School with a SWMS dated 29 November 2019 which Mr Nathan Rees had prepared. The SWMS required the following:

1. Completion of a risk assessment, including review of the principal contractor’s Site Safety Plan and Emergency Procedures, and the SWMS of any subcontractors. This was the first necessary step on all jobs.

2. Site-specific induction training for all project workers, with the signatures of all inducted workers on an induction register.

41. The SWMS also required that harnesses be worn at all times and that the harnesses, ropes, shackles and anchor or fixing points be checked. It also required implementation of “fall arrest systems” when working at height. The SWMS noted that, when installing roof sheeting and accessories, a harness must be worn to “prevent falling off or through the roof”.

42. On 2 December 2019 Mr Nathan Rees undertook a risk assessment for the work on the gymnasium roof. The risk assessment noted the following:

1. “Existing harness points for use…stay clear of skylight bays as no mesh is present”.

2. “Roof access will require harness point attachment until scaffold is installed…No penetrations only skylight bays are fall zones”.

3. “Skylights with no mesh” and, “Stay clear of skylights. Land packs in between bays”.

4. “Come up with a plan with the crane company and operators to lift packs safely”.

43. A JSA was conducted on 2 December 2019 by Mr Nathan Rees. It noted the following:

1. “Appropriate footwear to be worn, harness near live edges, note no mesh under skylights”.

2. “No wire under skylights”. This was given a risk rating of “1” with the action item, “Land sheets in the middle of skylight bays. Lock gates to School area”.

1. Regarding “access to roof”, the control measure was, “Clip harness points from inside window”.

44. Evolve’s SWMS, JSA and risk assessment were not provided to Metro Crane. Metro Crane’s employees were not inducted onto the site. Evolve did not confirm that Metro Crane had inducted its employees.

45. The Pre-Job Inspection and Toolbox Talk Form completed by Metro Crane in respect of the job stated that fall protection was not required.

46. Evolve did not confirm that Metro Crane had its own SWMS or safety documentation prior to work commencing on the roof, nor did it seek a copy of any such documentation from Metro Crane.

47. Metro Crane’s workers signed a SWMS for Mobile Crane Slewing prior to commencing work on 6 December 2019.

48. Mr Wilkinson has stated that he was told the roof was safe to access and the skylights were noted as a hazard.

49. On 6 December 2019 Evolve did not have a policy prohibiting workers from subcontracted companies from working on the roof unless they were using proper fall protection equipment.

50. On 6 December 2019 Mr Adam Rees was the most senior Evolve worker on site.

51. Mr Ible had performed dogging work for craning up roof sheets on prior occasions. He did not recall any discussion occurring regarding working at height.

Guidance Material

52. Regulation 78 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) required the use of barriers to prevent a fall.

53. The SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, dated August 2019 (the Falls Code) was available to Evolve prior to the incident. The Falls Code included:

1. At par 7.3 a particular reference to lanyards and harnesses, and the mandatory requirement for workers to be instructed in their safe use.

2. At par 3.3 a reference to risk assessment and a recommendation that when assessing the risks arising from each fall hazard there be consideration of a number of factors, including “the adequacy of current knowledge and training to carry out work safely, for example, young, new or inexperienced workers may be unfamiliar with the work.”

54. The SafeWork Australia Information Sheet, Safe Work on Roofs, dated January 2016 was also available to Evolve. The Information Sheet identified “fragile surface, skylights, holes or vents” as a hazard to consider in managing fall risks and referred to safe systems of work, including “Individual fall-arrest systems with harnesses and anchor points and safety nets”.

55. The Information Sheet further stated that all roofs “should be treated as fragile until a competent person has confirmed they are not” and that roofs are likely to be fragile where they are constructed of a number of materials including “polycarbonate or plastic commonly used in skylights”. Protection must be provided where there is a risk of falling through the roof, including “safety mesh secured under fragile roofing or skylights” and/or “a harness system with adequate anchorage points, along with appropriate training and supervision”.

56. Another Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, dated 2009 (the Roof Code) was also available to Evolve. At par 5.6 the Roof Code provided that before carrying out any work on roofs, a risk assessment should be carried out to identify safe access and “whether there are any brittle or fragile roofs, skylights or roof openings within the work area,” with hazardous areas to be clearly marked as “no go” zones and measures put in place to prevent persons accessing them or, where that is impracticable, “a fall arrest system incorporating a safety harness and effective anchorage point should be used”.

57. The SafeWork NSW Construction Falls from Heights Blitz Checklist provided a checklist for working at heights. One item on the checklist specified that falls from heights are the biggest killer on NSW construction sites and had a check box that stated:

“Controls in place to prevent falls through fragile/brittle roofs such as asbestos, plastic roof sheeting and skylights (eg roof mesh, barriers, exclusion zones).”

Systems of Work After the Incident

58. After the incident Evolve’s SWMS in relation to “Truck deliveries and vehicle/plant and equipment movement on site” was amended to include the following:

“All dogmen or trades conducting work for Evolve roofing on the roof to be checked for working at heights [training], harness in date and good condition and worn at all times when deemed to be a live edge, void, or in danger of a fall. No worker to be on the roof if they refuse to wear a harness in the abovementioned situation or do not hold a working at heights ticket.”

59. After the incident Evolve engaged Kerrect Group Pty Ltd to install temporary safety netting under the entirety of the gymnasium roof prior to the completion of remaining roof works. This cost the offender $19,907 plus GST. The installation of the safety netting took place between 16 and 19 December 2019.

60. In addition, Evolve reinforced procedures for working at heights, including providing workers, including Mr Adam Rees, with working at heights training. Evolve prohibited any workers being allowed to access a roof unless they had been trained in working at heights and had the proper safety equipment to carry out the work, including a harness. Evolve issued a non-conformance notice to Mr Adam Rees.

Evidence for the Defendant

Affidavit of Nathan Rees dated 22 February 2023

61. Mr Nathan Rees swore an affidavit on 22 February 2023 (DX 1) in relation to Evolve’s capacity to pay a fine pursuant to s 6 of the Fines Act1996 (NSW). He is the sole director of Evolve.

62. Mr Rees acknowledged the seriousness of Evolve’s offending as well as the impact upon Mr Ible.

Profit and Loss

63. The profits and losses of Evolve (after tax and dividends) for the financial years ending June 2018 to June 2022 are as follows:

2018	Loss	($243,301)
2019	Profit	$155,540
2020	Profit	$228,677
2021	Profit	$177,447
2022	Loss	($268,784)

64. Any profits have been mostly re-invested into the business. The most recent loss was due to reduced work and smaller-scale work as a result of the poor weather conditions from November 2021 to July 2022. Evolve has also been performing less large project work since the outbreak of COVID-19, which had financially impacted the business.

65. Mr Rees previously owned a commercial property in Taren Point, which was sold in November 2022 due to the poor trading conditions of Evolve. The proceeds from the sale were re-invested into the business. There was no evidence of the sale price.

Company Assets and Liabilities

66. Evolve previously owned a Toyota Tundra utility vehicle, which was sold in or about June 2022 for approximately $90,000 due to the downturn in work. The proceeds of sale were re-invested into the business.

67. In or about March 2019 Evolve purchased outright a Hino Top Truck for approximately $70,000 for use in larger, non-residential project work. The Hino Tip Truck is used daily in the business to transfer equipment to and from work sites. It is the sole Evolve work vehicle and Evolve’s most valuable asset.

68. The majority of Evolve’s assets, including the Hino Tip Truck, are used in the business and unable to be sold to meet a fine without impacting Evolve’s ability to generate revenue.

69. As a result of COVID-19 most major project work ceased, including a job Evolve had secured. Evolve failed to secure the job when it was later re-tendered. Evolve borrowed $87,551 from Mr Rees’ father, Mr Kevin Rees, due to an immediate need for cash flow. Evolve has yet to repay the loan.

70. Evolve recently combined its business loans with Lumi Finance. The loan is approximately $129,000 at the date of his affidavit.

71. Evolve has accrued a debt of $351,172 to the Australian Tax Office (ATO) at the time of the affidavit. Evolve has entered into a payment plan with the ATO.

72. Evolve’s accountant has advised Mr Rees that Evolve would not be successful in obtaining an additional business loan due to limited financial capability and inability to service the loan.

Personal Income and Assets

73. Mr Rees receives a salary of $135,200 gross per annum from Evolve.

74. Mr Rees and his wife, Mrs Elizabeth Rees, own a house mortgaged to ME Bank. Its market value is around $2 million. Since the incident their house has been refinanced three times, twice for the purposes of investing money into the business. The monies borrowed on mortgage are just over $2 million.

75. There was no explanation in the affidavit of how much was raised by each refinancing, or how the funds raised by each refinancing were spent.

Capacity to Pay

76. At the time of Mr Rees’ affidavit Evolve was undertaking a project for Scentre Group. As part of the tender process Evolve was required to disclose whether it has any convictions under work health and safety legislation. Mr Rees expressed concern that Evolve may not be successful in winning tenders for future work from Scentre Group and other builders with similar requirements. This may result in Evolve being limited to smaller, less profitable residential projects in the future.

Affidavit of Nathan Rees dated 10 March 2023

77. Mr Nathan Rees swore a second affidavit on 10 March 2023 (DX 2).

Background

78. Evolve is a small family owned and operated commercial and residential roofing business first registered in 2016. Mr Rees has conducted a roofing business since 2011. At the time of the incident Evolve employed six to seven employees in addition to Mr Rees. Evolve now employs nine employees.

79. Mr Rees is a trade-qualified roofer with 18 years of experience in the roofing industry. He holds various qualifications and certifications, including in relation to working at heights, high risk work and installing and inspecting harness points.

Remorse and Contrition

80. Mr Rees accepted the failures as stated in the Amended Summons. On behalf of Evolve, he expressed his remorse for these failures, the breach of the Act and the impact of the offending on Mr Ible. He further stated:

“I am truly sorry that Mr Ible sustained a serious injury and for the distress that he has experienced, and will no doubt continue to experience.”

Evolve’s Safety System

81. Prior to incident Mr Rees engaged a WHS consultant, Occupational Safety Solutions, to develop a safety management system. The pre-incident system included:

1. Inductions for new employees.

2. A buddy system whereby less experienced workers receive on-the-job training from more experienced workers.

3. Prohibiting workers who had not completed a working at heights training course from working on roofs that did not have complete fall protection.

4. Providing all employees with the necessary Personal Protective Equipment, including personal harnesses and the relevant accessories for employees who performed work at height.

5. Undertaking a pre-job inspection and completing Risk Assessments and a site-specific JSA form.

6. Development and implementation of a SWMS for Roof Metal Sheeting Work.

7. Pre-start talks for all employees prior to the commencement of work on any new job.

8. Supervision of employees undertaking the work, including in relation to ensuring compliance with Evolve’s system of work and safety protocols.

9. Weekly toolbox talks.

The Project Works

82. Prior to the 9 December 2019 Mr Rees took steps to confirm that the work could be completed safely using harnesses, including completing the risk assessment and JSA documents, as well as inspecting the eye bolt anchor points using an Anchor Pull Test Kit.

83. Mr Rees arranged for Mr Adam Rees to oversee the works on 9 December 2019 while Mr Rees worked at another project. Mr Adam Rees had prior experience overseeing project work. Mr Rees met with Mr Adam Rees on site and gave him a documented roof plan, explained that there was no mesh under the skylights, pointed out eye bolt anchor points and confirmed they were sound. Mr Rees also arranged for Mr Adam Rees to meet with Mr Luigi D’Alessandro from Metro Crane onsite to discuss the project requirements.

84. Mr Rees stated that he did not anticipate that the workers would not wear harnesses connected to the available anchor points. Not doing so in these circumstances was not consistent with Evolve’s policy and work practices. He accepted that he did not confirm that Metro Crane had a safe system of work for undertaking work on the roof, nor did he confirm that its workers had been provided with harnesses and associated equipment. On the previous jobs undertaken with Metro Crane Mr Rees observed their workers using harnesses to perform dogging work on the roof.

85. Following the incident Mr Rees regularly enquired about Mr Ible’s welfare. Evolve took Mr Adam Rees and Mr Taylor off the project and reimbursed them for expenses incurred by them for counselling sessions.

Safety System After the Incident

86. Employees now have a checklist that they are required to complete and sign prior to commencing a new job. Evolve arranged and paid for all employees to undergo refresher training for working at heights. Evolve engaged an external safety officer to review Evolve’s safety documentation and system, which has led to further updates. Mr Rees also performs regular inspections.

87. Evolve now requires all subcontractors to provide their safety documentation and proof of workers’ certifications, which Mr Rees reviews. All subcontractors are inducted into Evolve’s safety documents. Evolve’s site supervisor checks the subcontractors’ Working at Heights Tickets prior to work commencing.

Cooperation with SafeWork NSW

88. Evolve provided assistance to SafeWork NSW in the course of its investigation, including complying with all interviews and notices issued to it.

Affidavit of Bill Popovski dated 27 February 2023

89. Mr Bill Popovski affirmed an expert witness affidavit on 27 February 2023 (DX 3). He is a chartered accountant and the manager of Strategic Accounting. His qualifications were not challenged.

90. Mr Popovski did not consider that Evolve or Mr Rees have the capacity to borrow further money. In his opinion it would be difficult for Evolve to meet a significant fine and to do so would be crippling to the business.

Consideration

91. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

92. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

93. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

94. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

95. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

96. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

97. 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. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

98. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

99. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

100. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

101. My findings about the defendant’s level of culpability are based upon the following:

1. Evolve had actual knowledge of the risk posed by working near the unprotected skylights. The risk was specifically noted in the risk assessment and the JSA created by Mr Nathan Rees.

2. The likelihood of the risk occurring was significant. This case and, sadly, many others which come before this court demonstrate that when workers are handling and manoeuvring materials on a roof, there is always a real risk that a false step will result in a fall from or through the roof.

3. The potential consequences of the risk are death or serious injury, as demonstrated in the table set out at the start of this judgment.

4. The steps to eliminate or minimise the risk were well known to Evolve, and were set out in Evolve’s safety documentation. In an uncanny echo of the previous case of SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202, two harnesses were available on site but were left in a vehicle parked at the site.

1. There was no burden or inconvenience in implementing steps which Evolve had already documented.

2. The harm caused to Mr Ible was catastrophic and permanent.

3. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

4. I accept the submission of counsel for Evolve that Evolve had a pre-existing commitment to safety and had implemented appropriate systems to identify hazards, assess risks and put in place control measures. Mr Nathan Rees had inspected the site and completed a JSA and a Risk Assessment. He had also physically tested the anchor points to ascertain that they were adequately secured. The Evolve SWMS stated that harnesses were to be worn at all times. Mr Nathan Rees personally attended the site to go through the Evolve SWMS in a pre-start talk with the Evolve workers.

5. While Mr Nathan Rees did everything appropriate to ensure safety, he was badly let down by Mr Adam Rees, the senior employee on the site and the job supervisor. He disobeyed all of the appropriate safety steps required of him by Mr Nathan Rees. Nevertheless, Evolve is responsible for the conduct of Mr Adam Rees on 6 December 2019.

6. I take into account that there were contributions to the risk by Metro Crane, which casts light upon the real level of culpability of Evolve.

102. I find that the level of culpability of Evolve is in the mid range.

Deterrence

103. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

104. The table of cases at the start of this judgment demonstrates that there is, without exaggeration, carnage in the roofing industry. There are obviously jobs, such as the work on this case, where well-known and effective safety precepts are simply being ignored. The consequences are almost inevitably death or very serious injury. It is not hard to see why. A simple calculation using the Third Equation of Motion (v² = u² + 2as) shows that Mr Ible, having fallen 9 metres under the influence of gravity, would have hit the unyielding floor of the gymnasium at 47.8 kilometres per hour.

105. The penalty must also reflect the need for specific deterrence. Evolve is still conducting a business. Its operations involve working on roofs and the continuing engagement of workers.

Aggravating Factors

106. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

107. Evolve has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

108. Evolve is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Evolve has been in business since 2016.

109. Evolve is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

110. Evolve has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

111. Evolve has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Ible was caused by its actions.

112. Evolve entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Evolve a 25% discount for an early plea.

113. Evolve gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

114. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

115. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“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 financial 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.”

116. On the evidence in the affidavits and given orally by Mr Nathan Rees and Mr Popovski, I am satisfied that Evolve has a reduced capacity to pay a fine. I accept the evidence of Mr Rees that in past years, before the involvement of Mr Popovski in performing accounting work for the company, personal expenses were paid from company funds, and that these payments were treated as director’s loans. Mr Popovksi has brought some degree of order to the finances of the company and Mr Rees is now paid a wage rather than taking drawings. While in the accounts of the company the funds paid for the expenses of Mr Rees in the past are treated as loans, these moneys have been spent and are not available to pay a fine.

117. I accept the evidence that there is a large debt owing to the Australian Taxation Office, and that the ATO is accepting, and has been paid, monthly instalments of $20,000 which should discharge that debt in about 18 months time.

118. I also accept that the income of the company has been adversely affected, firstly by the COVID-19 pandemic, and secondly by the extreme wet weather in 2022, which restricted the amount of outdoor work which could be carried on.

119. It is for those reasons that I have reduced the fine which would otherwise be imposed for the commission of this offence.

Costs

120. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

121. My orders are:

1. Evolve Roofing Pty Ltd is convicted.

2. The appropriate fine is $400,000 but that will be reduced by 25% to $300,000 to reflect the early plea of guilty and further reduced to $150,000 by reason capacity to pay.

3. Order Evolve Roofing Pty Ltd to pay a fine of $150,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Evolve Roofing Pty Ltd to pay the prosecutor’s costs.

**********

Decision last updated: 31 March 2023