SafeWork NSW v MACFIN Building Solutions Pty Ltd

[2020] NSWDC 776

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v MACFIN Building Solutions Pty Ltd [2020] NSWDC 776

Hearing dates:

27 November 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order defendant pay a fine of $150,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5)   I make no order as to costs.

Catchwords:

CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business

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

OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (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

Environmental Protection Authority v Barnes [2006] NSWCCA 246

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

Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92

Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1

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

Markarian v The Queen (2005) 228 CLR 357

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

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

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

R v Cage [2006] NSWCCA 304

R v Miria [2009] NSWCCA 68

SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537

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

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

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

Texts Cited:

SafeWork Australia Managing the Risk of Falls at the Workplace Code of Practice (April 2016)

WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
MACFIN Building Solutions Pty Ltd (Defendant)

Representation:

Counsel: Ms S Callan SC with Mr Hawila (Prosecutor)

Solicitors: Ms B Ng, Department of Customer Service
Mr D Finlay (Company Director of Defendant - in person, unrepresented)

File Number(s):

2019/00178325

Publication restriction:

Nil

1. JUDGMENT

2. On 31 August 2020, MACFIN Building Solutions Pty Ltd (‘the defendant’) pled guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) that, by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, it exposed Mr Mark Dennis and Mr Peter Hubbard to a risk of death or serious injury.

3. It is a strict liability offence: s 12A of the Act.

4. The elements are relevantly:

• the defendant owed a duty under s 19(1) of the Act to ensure, so far as reasonably practicable, the health and safety of workers;

• the defendant failed to comply with that duty;

• the defendant exposed workers, Mr Mark Dennis and Mr Peter Hubbard to a risk of death or serious injury.

5. The offence carries the maximum penalty of $1,500,000.00.

6. The circumstances of the offence are particularised in the charge and set out in the Agreed Statement of Facts, which are summarised below.

7. The prosecutor and the court received a Statutory Declaration by Dominic Finlay, sole director and shareholder of the defendant, dated 20 October 2020 upon which the defendant intended to rely. The defendant was not legally represented and Mr Finlay appeared in person on the defendant’s behalf.

BACKGROUND

8. The defendant was a person conducting a business or undertaking (‘PCBU’) which involved residential, commercial and civil waterproofing services. Mr Dominic Finlay was the sole director and secretary of the defendant.

9. CCP Remedial Pty Limited (‘CCP’) conducted a business or undertaking which involved construction services to the insurance repair industry. Mr Ben Pines was the sole director and secretary of CCP. CCP was engaged by IAG Limited to conduct construction and building repairs to a residential property located in St Ives, New South Wales (‘the site’). The site was a workplace for the purposes of s 8 of the Act. CCP engaged the defendant to undertake waterproofing services at the site and in particular on the roof of the premises (‘the work’).

THE ROOF

10. The site consisted of a split-level residential brick building with a flat roof. On the northern side of the roof was a void covered with a green shade cloth and wire mesh (‘the void’). The void was 1.6 metres by 2.9 metres wide and was approximately 3.2 metres in height from ground level. On the roof, to the south of the void, was an open court yard/atrium. South of the atrium was an area of the roof covered with polycarbonate roofing and at the rear of the roof, facing west, was a skylight.

THE WORKERS

11. Mr Mark Dennis was a waterproofer and specialist in bituminous roofing. Bituminous roofing involves welding a bitumen sheet to a roof to provide a waterproof seal. Mr Dennis frequently subcontracted to the defendant in his capacity as a waterproofer and was requested to attend the site on 26 July 2017 to determine whether he could assist with the work.

12. Mr Peter Hubbard was a waterproofer with over 50 years’ experience. At the time of the incident, he was subcontracted or casually employed by the defendant to undertake waterproofing work at the site. This was the first job Mr Hubbard had undertaken for the defendant. Mr Hubbard commenced working at the site on 24 July 2017.

13. Mr David Palazzi was a carpenter with over 20 years’ experience. At the time of the incident, he was subcontracted by CCP to undertake carpentry work at the site which included carrying out work on the roof and assisting with waterproofing tasks. As at the date of incident, Mr Palazzi had worked as a subcontractor for CCP on-and-off for about 4 years. Mr Palazzi commenced working at the site on 24 July 2017.

14. Mr Mark Feilberg was a labourer with over 5 years’ experience in the construction industry. At the time of the incident he was subcontracted by CCP to undertake labour work at the site and had worked for CCP on previous jobs in the past. Mr Feilberg commenced working at the site on 26 July 2017.

THE WORK

15. On 24 July 2017, CCP commenced construction and repair work at the site. On 25 July 2017, Mr Pines determined that an extra worker was required to complete the waterproofing work on the roof. As a result, Mr Pines contacted Mr Finlay, requesting that the defendant provide an additional worker to assist with the waterproofing work on the roof. Later that day, Mr Finlay contacted Mr Dennis and asked him to attend the site the following morning to inspect the site and determine whether he could assist with the work.

16. On past jobs, Mr Dennis would attend the relevant site, complete a site assessment and then discuss with the defendant how he could best fit the requirements with regards to safety, products and duration of work.

THE INCIDENT

17. On 26 July 2017, Mr Hubbard arrived at the site. He saw Mr Dennis waiting at his car and greeted him, having known him from a previous job. The two men then proceeded onto the roof of the premises via a ladder.

18. Within a short time of being on the roof, Mr Dennis and Mr Hubbard had an argument about the waterproofing method being undertaken. As a result, Mr Dennis walked away from Mr Hubbard and began to assist Mr Palazzi and Mr Feilberg who were working on a separate area of the roof. Mr Palazzi and Mr Feilberg were in the process of stripping back waterproofing membrane and stockpiling it in an area of the roof at the time Mr Dennis began assisting them.

19. Mr Dennis made several trips across the roof carrying the waterproofing membrane from one area of the roof to another. It was at this time that Mr Dennis fell through the void. There were no direct witnesses to the fall. Mr Dennis fell approximately 3.2 metres onto a rock garden below, where his face was submerged in a shallow water feature.

20. Upon realising that Mr Dennis had fallen through the void, Mr Palazzi jumped down from the roof through the void to assist Mr Dennis. Mr Feilberg climbed down the ladder and called an ambulance. He then broke down the front door of the residence in order to access the rock garden area where Mr Dennis was located and assisted with First Aid.

21. Mr Dennis sustained extensive injuries as a result of falling through the void including intracranial injuries, spine, skull and facial fractures, a collapsed lung and abdominal bleeding. He was taken to Royal North Shore Hospital where he later passed away.

SYSTEMS OF WORK AT THE TIME OF THE INCIDENT

22. At the time of the incident, there was no adequate cover or fall prevention device (such as handrails) in place to prevent the risk of workers falling through the void. The green shade cloth and wire mesh that covered the void was insufficiently strong to prevent persons form falling through.

23. There was also no adequate cover or fall prevention device, such as handrails or edge protection, in place to prevent the risk of workers falling through any of the other penetrations in the roof. There was no scaffolding or edge protection provided around the perimeter of the roof or building to prevent the risk of persons falling from the building.

SAFE WORK METHOD STATEMENTS

24. Two weeks prior to the incident, Mr Finlay conducted a site inspection with Mr Pines at the premises. The void and other penetrations in the roof were identified but were assessed as low risk by Mr Finlay and Mr Pines.

25. The defendant did not provide a site-specific Safe Work Method Statement (‘SWMS’) to CCP until after the incident had occurred. The SWMS identified the risk of slips, trips and falls, and provided the control measures of covering the floor penetrations and not working near the edge of an excavation or unprotected edge. It did not specifically identify the unprotected edges or void on the roof. Prior to providing this SWMS, the defendant relied on a generic SWMS that was provided to CCP on a previous job.

26. Mr Pines completed a risk assessment checklist dated 8 June 2017 in which he identified several hazards at the premises, including working from a height and falls. As part of the risk assessment, Mr Pines took several photos which included a photo of the void into which Mr Dennis fell.

27. CCP prepared a generic SWMS dated 8 June 2017. It identified the risk of a person falling more than two metres and provided the control of the use of administration controls and harnesses but did not identify the risks arising from unprotected edges or voids on the roof or the measures to be implemented to control those risks.

28. None of Mr Feilberg, Mr Palazzi, Mr Hubbard nor Mr Dennis were provided with access to a SWMS from either CCP or the defendant prior to the incident.

29. There was no safe work procedure for working at a height at the site.

INDUCTION/INSTRUCTIONS

30. None of Mr Feilberg, Mr Palazzi, Mr Hubbard, nor Mr Dennis were inducted into the construction site at the premises.

31. Mr Palazzi undertook a general induction when he commenced working for CCP approximately 5 years prior to the incident. Mr Feilberg undertook a general induction when he commenced working for CCP which was at a different site.

32. All instructions in relation to work at the site were given verbally to workers. There were no discussions regarding the risk of working at heights, including the risk of falling. None of the workers were informed of the risks associated with working at heights or near voids or penetrations nor the control measures available to eliminate or minimise those risks.

33. None of the workers on site at the premises were prohibited from working or being near the edge of the roof or any voids or penetrations unless appropriately protected.

34. CCP relied on the skills and experience of subcontractors of the defendant as well as Mr Palazzi to provide instructions and supervision in relation to the health and safety of workers.

REGULATION AND GUIDANCE MATERIAL

35. Pursuant to s 78 of the Work Health and Safety Regulation 2011 (NSW) (‘Regulation’), PCBUs must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level or another that is reasonably likely to cause injury to the person or any other person.

36. Management of this risk by a PCBU in accordance with Part 3.1 of the Regulation includes requirements to:

1. Identify reasonably foreseeable hazards that could give rise to risks of health and safety (Regulation 34);

2. Eliminate the risk to health and safety so far as is reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of risk control (Regulation 35 and 36);

3. Maintain the implemented control measure so that it remains effective (Regulation 37); and

4. Review and, if necessary, revise all risk control measures (Regulation 38).

37. The following codes of practice provided specific guidance to PCBUs in relation to managing the risk of falls from heights:

1. SafeWork Australia, Managing the Risk of Falls at the Workplace Code of Practice (April 2016) (‘the SafeWork COP’) applies to all workplaces where there is a risk of a fall by a person from one level to another that is reasonably likely to cause injury. Specifically, the code of practice provides:

‘Protection of openings and holes

Holes, penetrations and opening through which a person could fall should be made safe immediately after being formed.

If a cover is used as a control measure, it must be made of a material that is strong enough to prevent persons or objects falling through and must be securely fixed to prevent any dislodgment or accidental removal.’

2. The WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014) (‘the WorkCover COP’) provides practical guidance on how to eliminate, or if that is not possible, to minimise the risk of falls from height in housing construction. This code of practice is approved under s 274 of the Act. Section 1 of the code of practice states:

‘Falls are a major cause of death and serious injury in Australian workplaces. Fall hazards are found when carrying out common tasks in the construction of a typical one or two storey house.’

38. Section 2.1 of the WorkCover code of practice provides guidance on various control measures in the hierarchy of risk control which are available to be implemented in order to provide adequate protection against the risk of falls, such as the installation of a fall prevention device like guardrails.

39. Section 3 of the WorkCover code of practice also provides the following guidance for void protection:

‘Void Protection

Where workers are working from trestles, ladders and mobile scaffolds on solid construction and they are located in close proximity to floor openings such as stairwells and partially completed floors, edge protection will not prevent a fall into the opening. The opening must be covered with covers designed to withstand likely impact and static loads and fixed to prevent any dislodgment or accidental removal.’

40. Section 4 of the WorkCover code of practice states that guardrails may be used to provide effective fall protection at openings in floor or roof structures and at the perimeters of buildings and skylights.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

41. Immediately following the incident, the workers covered the void with timber planks and plywood and erected handrails and barrier tape around the perimeter of the void.

42. SafeWork NSW issued Prohibition Notice No 33414 to CCP on 27 July 2018. The Prohibition Notice directed CCP to cease work at the site until appropriate fall protection measures were put in place.

43. SafeWork NSW issued Improvement Notice No 7310369 to CCP on 28 July 2018 and Improvement Notice No 7310370 to the defendant on 28 July 2018. The Improvement Notices directed CCP and the defendant to review their SWMS and implement control measures to prevent falls from heights, in particular from the roof, voids, edges and areas not intended to support the load of a person including shade cloth roofs and skylights.

44. CCP complied with the improvement notice and installed catch decks below the void, rear atrium, the southern external atrium, and around the perimeter of the building. CCP also removed the polycarbonate roofing, protected the void from three sides, and installed access stairs to the roof.

45. CCP and the defendant created a SWMS for the task of ‘torch on waterproofing’ (bituminous roofing) and created a SWMS checklist. Since the incident, the defendant has also engaged a health and safety contractor to assist it in updating their safe work procedures, improving site safety, and to decrease exposure to hazardous environments.

CONSIDERATIONS

The Defendant’s Failure to Ensure Health and Safety

46. The defendant bore a duty under s 19(1), and had an obligation to manage risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury; Regulation 78 of the Regulation. The defendant failed to comply with this duty.

47. At the time of the incident, there was no adequate cover or fall prevention devices (such as handrails) to prevent the risk of persons falling through the void – or other such penetrations in the roof, and there was no scaffolding or edge protection to prevent the risk of persons falling from the roof.

48. The defendant had not prepared a site specific SWMS and CCP prepared a SWMS which was generic in nature. There was no safe work procedure for working at heights at the site. None of the workers on site were inducted or instructed/reminded about the risks of working at heights including the risk of falling.

49. The defendant’s failures as set out at [17] of the Amended Summons can be summarised as follows:

1. Require CCP install adequate edger protection (eg guard rails or scaffolding) and protection in respect of voids (eg guard rails or covers of robust construction). It ought to have prohibited workers from accessing or performing work on the roof until this occurred;

2. Provide workers, or request CCP to provide workers with:

1. a site specific SWMS; and/or

2. adequate information/training by way of an induction or safety/toolbox talk in relation to the SWMS or safe work procedure and about the presence of all voids and penetrations in the roof, the risks of falling, and means by which the risk was controlled,

3. and provide adequate supervision to maintain and enforce adherence to the SWMS or safe work procedure.

50. These pleaded measures are admitted by the defendant to be reasonably practical steps which it ought to have implemented, but failed to do so, giving rise to the risk of death and serious injury to Mr Dennis and Mr Hubbard.

51. Each of these pleaded measures was addressed by CCP and the defendant after the incident.

52. I accept that the facts as agreed in the Agreed Statement of Facts establish each of the particulars.

SENTENCING

53. 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; and

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

THE NATURE OF THE DUTY

54. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training and instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act.

55. The duty required the defendants to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1.

56. The notion of reasonable practicability is informed by the considerations found in s 18 of the Act. The defendant, by its plea of guilty, have admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

57. The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.

58. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out their reasons why sentencers should have particular regard to the maximum penalties specified by statute. Their Honours stated:

‘…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.’

SENTENCING PRINCIPLES

59. 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.

60. 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.

61. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (supra)..

62. This approach to sentencing was reiterated 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 judgment without any attempt to state precisely how any given factor has influenced the judgment.’

63. 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

64. The duties of the defendant required that it ensured the health and safety of workers as far as reasonably practicable. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

65. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.

66. 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.

67. 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].

68. 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; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.

69. 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.

70. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows:

‘[34] 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 to guard against 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.

…..

[42] 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 pressure event of the force 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.

…..

[53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken. (my emphasis)

71. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.

72. The relevant factors in determining the defendant’s culpabilities are:

1. The risk was a significant one, it was one that was known or identified, and reasonably able to be known or identified, on or before 26 July 2017.

2. The defendant knew or ought to have known that there was a risk of workers sustaining serious or fatal injuries as a result of falls from heights including from voids, edges of the roof and areas not intended to support the load of a person including shade cloth and skylights.

3. The defendant was aware that there were a series of risks at the premises as it conducted an inspection two weeks prior to the incident and identified the void and open penetrations as potential risks. Notwithstanding, the defendant classified the risk as low (ASOF paragraph 33)

4. The risk is reflected in Regulation 78 of the Regulation and the defendant also had available guidance material which outlines the risk of death or serious injury while working from heights as specified at paragraph 36 above – specifically, the SafeWork Australia Managing the Risk of Falls at the Workplace Code of Practice (April 2016) (‘Safework COP’) and WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014) (‘WorkCover COP’) (relevantly summarised at ASOF para 45-46).

5. Injuries on building sites are notorious, as are injuries resulting from falls from or through roofs.

6. Therefore, the defendant was or ought to have been aware that Mr Dennis and Mr Hubbard would be at risk of death or serious injury while working from heights.

7. The foreseeability of serious injury was high on the scale of probability noting the risks were identified by the defendant prior to the incident, and no safe work procedures or systems of work were implemented.

8. The existence of simple and straightforward control measures which could have been taken by the defendant to eliminate or minimise the risk to safety is also relevant to assessing the objective seriousness of the offence.

9. By its plea, the defendant admits that the measures particularised were reasonably practicable measures it could have implemented to eliminate or minimise the risk. None of the measures were complex. Indeed many are outlined in the SafeWork COP and WorkCover COP as measures required to eliminate or minimise the risk of falls.

10. It would have been straightforward for the defendant to take the steps particularised. If such steps had been taken, the risks of working at heights would have been significantly reduced and would have minimised the risk of Mr Dennis suffering fatal injuries.

11. The gravity of the potential risk to safety flowing from the breach is relevant as a measure of gravity of the breach and the culpability of the defendant.

12. Although the damage, injury or death caused by the breach does not of itself dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis from a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk.

13. In the present case, plainly the possible consequences of the defendant’s breaches were death or serious injury. The probability that such consequences would follow, in the event of a fall from the roof, were self-evident. The guidance material available to the defendant identifies the possibility of death or serious injury while working from heights.

14. It is evident that the risk of persons suffering fatal or serious injuries in the circumstances was a real and substantial one, and was not remote.

15. Here, the risk manifested: resulting in Mr Dennis sustaining fatal injuries including intracranial injuries, spine, skull and facial fractures, a collapsed lung and abdominal bleeding.

16. A risk of death or serious injury is inherent to this offence, pursuant to s 32 of the Act. As such, it is not appropriate to also apply the discrete aggravating factor in relation to the grave risk of serious injury or death in s 21A of the Sentencing Act.

17. However, the fact that the offence did cause fatal injuries can be taken into account pursuant to s 21A(2)(g) of the Sentencing Act. It must be established beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question.

18. An offence under s 32 of the Act does not require an injury to be made out, but only the creation of a risk of death or serious injury. Here, the injuries sustained by Mr Dennis were fatal.

19. In SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537, Russell SC DCJ noted that since the start of 2016 and as at the date of his Honour’s judgment on 4 October 2019 the District Court had delivered sentence in 42 cases involving a fall from height. This court has dealt with a number of matters involving falls from defective or incomplete scaffolding and being unsafely up ladders in the construction industry, and it appears the message is not getting through to the industry.

73. 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 per Latham J at [17]-[18].

74. I find that there was an obvious and foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were reasonably practicable.

75. Overall, having regard to the above, I conclude the offence is objectively serious, and that the offence falls within the mid-range of offending.

DETERRENCE

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

77. 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.

78. 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.

79. 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:

‘[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.’

80. 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 the construction industry is concerning. Falls from height are a major cause of death and serious injury. The gravity and frequency of injuries resulting from falls from height on construction sites heightens the role of general deterrence.

81. Workers 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 for other corporations and individuals, for proper planning and development of procedures to eliminate, or at the very least severely minimise, the presentation of such a risk.

82. 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 the risks of falling from heights.

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

84. 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 factors.

85. 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) 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) 109 IR 316.’

86. In these proceedings, it is relevant to consider the attitude of the defendant to questions of workplace safety, any steps taken to improve safety following a breach of duty and the propensity of the defendant to re-offend.

87. After the incident an Improvement Notice was issued and the defendant prepared a SWMS in response. The defendant also engaged a safety contractor to assist in updating safe work procedures, improving site safety and to decrease exposure to hazardous environments. This is detailed in the document prepared by Mr Finlay on behalf of the defendant.

88. The defendant continues to provide residential, commercial and civil waterproofing services and thus is responsible for people working at heights. It is apparent both from the inherent nature of the construction industry, and the specific nature of waterproofing roofs, that the defendant must constantly manage the risks to health and safety associated with the risk of falls. It is important that the defendant is vigilant in ensuring that strict control measures are in place and supervised. It is for this reason that the penalty imposed contains a significant component for specific deterrence to compel it to take a rigorous approach to health and safety in the future.

AGGRAVATING FACTORS

89. The injuries sustained by Mr Dennis were fatal: s 21A(2)(g) of the Sentencing Act.

MITIGATING FACTORS

90. To establish a mitigating factor, the onus is on the defendant. I note that the defendant does not have a record of previous convictions: s 21A(3)(e) of the Sentencing Act.

91. I accept that the defendant co-operated with SafeWork during the investigation of the incident: s 21A(3)(m) of the Sentencing Act.

92. I accept that the defendant, as represented by Mr Finlay, is of good character: s 21A(3)(f) of the Sentencing Act.

93. I accept that the defendant through Mr Finlay has demonstrated remorse: s 21A(3)(i) of the Sentencing Act.

94. The defendant entered a plea of guilty to an Amended Summons on 31 August 2020, which was on the 8^th mention of the proceedings. The prosecution submits that, as this was not at the first available opportunity, the defendant ought not be afforded the conventional 25% discount based on the utilitarian value of the plea: s 22 of the Sentencing Act. I accept that the defendant was having difficulties with his legal representation, and as such this was a reasonably early plea as it came before the matter was listed for trial and thus the defendant is entitled to the 25% discount.

CAPACITY TO PAY

95. The defendant has raised the issue of its ability to pay any fine due to its financial circumstances, but does not make an application under s 6 of the Fines Act 1996 (NSW).

96. In the statement that Mr Finlay provided, he sets out the endeavours he has made to build the defendant into a reliable contractor in the waterproofing industry. He also indicates that in August 2018, one of the defendant’s major clients went into voluntary liquidation owing the defendant over $180,000 for unpaid works, which has been written off by the defendant as a bad debt. He indicates that this has happened with other clients as well, yet he is trying to endure these hardships as a matter of pride and goodwill, and I accept that is the case.

97. The defendant appeared through its director Mr Finlay unrepresented. Prior to me coming onto the Bench, I understand that Mr Finlay and learned Senior Counsel for the prosecution had had some discussions as to how the sentence hearing should proceed. As a result of those discussions, the prosecutor suggested that Mr Finlay give sworn evidence to address the fact that there was no evidence as yet available as to the defendant’s financial circumstances nor its remorse.

98. I must make comment on the conduct of the Senior Counsel for the prosecution and the manner in which the matter ultimately proceeded. To have the prosecutor adducing evidence from the director of the defendant to assist his plea in mitigation is most admirable. The Court is very grateful to the prosecutor for enabling all of the relevant material being placed before the court with regard to the considerations I must turn my mind to in coming to the appropriate penalty. I commend Senior Counsel for her sensible and sensitive approach.

99. The evidence Mr Finlay gave demonstrates that he is paying himself a salary of approximately $55,000 per annum since about 2016, but in the last 12 months he has experienced a significant downturn I the amount of work the defendant has been offered and as a consequence he has been financially compromised. He stated that the company has no money in the bank and he is borrowing money and using his own personal resources to keep the defendant afloat. He has not made a claim on his insurance.

100. Based on all the evidence before me, I accept that the imposition of a significant fine will have a detrimental effect on the defendant’s financial circumstances, and on that basis I will afford it some leniency. However, this will not outweigh the specific and general deterrence that must be evidenced by the imposition of a fine, due to the objective seriousness of the offence.

101. Mr Finlay also explained having “the worst feeling in my life, just recalling it” when asked about how the incident had affected him. I accept that the defendant has expressed contrition and remorse through Mr Finlay and acknowledges that it is responsible for the incident occurring: s 21A(3)(i) of the Sentencing Act.

102. The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of the defendant. The Court can also have regard to the defendants’ own costs that it will have to bear as a consequence of a breach of the Act: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

103. As I have accepted that the defendant may have some difficulty paying the fine, I am of the view that to waive the payment of the prosecution’s costs forms a balance between the need for general deterrence and the defendants’ somewhat limited capacity to pay.

104. The appropriate fine is $200,000.00. The defendant is entitled to a discount of 25% for the early plea.

COSTS

105. On the basis that the defendants may have some difficulty in paying a fine imposed, I make no order as to costs.

PENALTY

106. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. Accordingly, I order defendant pay a fine of $150,000.00.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. I make no order as to costs.

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Decision last updated: 18 December 2020