Safework NSW v Landmark Roofing Pty Ltd - [2020] NSWDC 202

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
Hearing dates: 4, 5, 6, 8 May 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The elements of the offence set out in the Summons filed on 18 March 2019 have been proved beyond a reasonable doubt.
(2)   I find Landmark Roofing Pty Limited guilty of the offence.
(3)   I will list the matter for a Sentence Hearing on a date convenient to the parties.

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

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable
OTHER – site supervisor and apprentice roofer replacing polycarbonate skylight in roof with metal sheets ̶ apprentice roofer put foot onto an old brittle polycarbonate sheet skylight and fell through the roof – worker died from injuries suffered in fall – neither worker had a fall arrest or restraint system in place at the time of the incident ̶ both workers should have had their safety harnesses connected by a rope to the available static line
Legislation Cited: Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A 14, 16, 17, 18, 19, 32, 230, 244, 275
Work Health and Safety Regulation 2017 (NSW), cll 291, 299
Cases Cited: Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553
Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373
Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 202
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the case of Safework NSW v Landmark Roofing Pty Ltd, the matter was heard in the Local Court of New South Wales. The defendant, Landmark Roofing Pty Ltd, was prosecuted by Safework NSW under the Work Health and Safety Act 2011 for failing to comply with its duty of care towards workers, resulting in a fatality. The incident involved a site supervisor and an apprentice roofer who were replacing a polycarbonate skylight with metal sheets. The apprentice roofer fell through the roof after stepping on a brittle polycarbonate sheet, resulting in fatal injuries. The prosecution argued that the company failed to ensure that the workers had their safety harnesses connected to the available static line, thereby exposing them to the risk of death or serious injury.

The central legal issues before the court were whether the defendant owed a duty of care to the workers, whether there was a failure to comply with that duty, and whether that failure exposed the workers to the risk of death or serious injury. The court considered the reasonable practicability of implementing safety measures, the likelihood and foreseeability of the risk, and what the defendant should have reasonably known. The court also examined whether there was a causal relationship between the defendant's actions and the risk, as well as the measures that should have been taken to guard against such risks.

The court found that the elements of the offence had been proven beyond a reasonable doubt, establishing that the defendant owed a duty of care to the workers and that this duty was not fulfilled. The court concluded that the failure to implement safety measures, such as ensuring that the workers' safety harnesses were connected to the static line, exposed the workers to the risk of death or serious injury. Consequently, the court found Landmark Roofing Pty Ltd guilty of the offence.

The court ordered that the elements of the offence set out in the summons had been proved beyond a reasonable doubt and that the defendant was guilty of the offence. The court scheduled a sentence hearing to be held at a later date convenient to both parties.

Orders

Orders of the court

(1) The elements of the offence set out in the Summons filed on 18 March 2019 have been proved beyond a reasonable doubt.

(2) I find Landmark Roofing Pty Limited guilty of the offence.

(3) I will list the matter for a Sentence Hearing on a date convenient to the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
Hearing dates:	4, 5, 6, 8 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The elements of the offence set out in the Summons filed on 18 March 2019 have been proved beyond a reasonable doubt. (2) I find Landmark Roofing Pty Limited guilty of the offence. (3) I will list the matter for a Sentence Hearing on a date convenient to the parties.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable OTHER – site supervisor and apprentice roofer replacing polycarbonate skylight in roof with metal sheets ̶ apprentice roofer put foot onto an old brittle polycarbonate sheet skylight and fell through the roof – worker died from injuries suffered in fall – neither worker had a fall arrest or restraint system in place at the time of the incident ̶ both workers should have had their safety harnesses connected by a rope to the available static line
Legislation Cited:	Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A 14, 16, 17, 18, 19, 32, 230, 244, 275 Work Health and Safety Regulation 2017 (NSW), cll 291, 299
Cases Cited:	Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373 Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304