SafeWork NSW v Metro Crane Services Pty Limited

[2023] NSWDC 144

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Metro Crane Services Pty Limited [2023] NSWDC 144

Hearing dates:

2 May 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Metro Crane Services Pty Limited is convicted.

(2)   The appropriate fine is $400,000 but that will be reduced by 10% to reflect the plea of guilty.

(3)   Order Metro Crane Services Pty Limited to pay a fine of $360,000.

(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 Metro Crane Services Pty Limited 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 – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from heights – worker performing dogman duties on roof – fell through fragile skylight to ground below – failure to conduct adequate risk assessment – failure to implement and monitor matters identified from risk assessment – failure to enquire about safety netting and skylight barriers or covers – failure to implement adequate system of supervision – failure to confirm workers had appropriate personal protective equipment – failure to confirm workers had appropriate safety training

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), cl 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 Evolve Roofing Pty Ltd [2023] NSWDC 75

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

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

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

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

SafeWork NSW Construction Falls from Heights Blitz Checklist

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Metro Crane Services Pty Limited (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
T Kent (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Mark Mulock & Co Pty Limited (Defendant)

File Number(s):

2021/322159

Judgment

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 129	SafeWork NSW v Voltex Trading Pty Ltd	Right L2 traverse process (spinal protrusion) fracture and bruising.
[2023] NSWDC 75	SafeWork NSW v Evolve Roofing Pty Ltd (charged over the same incident dealt with in this judgment)	Extradural haemorrhage, intraparenchymal haemorrhage, left frontal lobe and high intracranial pressure, skull fracture, left eye retrobulbar haematoma, left pneumothorax with bilateral pleural effusions, ruptured splenic artery and splenic laceration, distal pancreatic injury and pelvic fractures.
[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. Metro Crane Services Pty Limited (Metro) was engaged to provide crane services to load roofing material onto a gymnasium roof. While on the roof a worker Mr Grant Ible stepped backwards and fell nine metres through a fragile skylight onto the floor below.

3. Metro 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 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 8 of the Amended Summons is as follows:

“8. The risk was the risk to workers, including Grant 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 9 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:

“9. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Grant 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. Conducting an adequate risk assessment in relation to the task of lifting and placing roofing sheets onto the gymnasium roof prior to workers commencing such work inclusive of giving consideration to:

i. the existence and location of skylights in the roof;

ii. the existence, or lack thereof, of mesh safety netting slung under the roof;

iii. appropriate personal protective equipment required for the task inclusive of the availability of such equipment;

iv. the appropriateness of the training of the person conducting the task to work at heights.

b. implementing and monitoring the matters identified from the risk assessment as requiring action;

c. making enquiries of Evolve Roofing regarding the presence of and/or installation of the following prior to the commencement of work on the roof:

i. safety netting underneath the skylights in the roof; and/or

ii. barriers around the skylights or covers over the skylights structurally capable of supporting persons;

d. Implementing an adequate system of supervision on site to ensure that work would not commence or continue on the roof without adequate fall prevention measures being in place.

e. Confirming workers performing work on the roof had available and used appropriate personal protective equipment, such as a fall restraint system comprising a harness, or making enquiries of Evolve Roofing concerning the existence and availability of such equipment for use by the defendant's workers at site; and/or

f. Confirming that all workers required, instructed and/or permitted to perform work on the roof have appropriate working at heights safety training.”

Background

7. The parties presented an Agreed Statement of Facts and this material is summarised below.

Background

8. Metro was in the business or undertaking of short and long-term mobile crane hire. Mr James Wilkinson was the sole director.

9. On 30 November 2019 Evolve Roofing Pty Ltd (Evolve) was engaged to replace the roof of a school gymnasium in Croydon. Evolve subcontracted Metro to:

1. Provide a 100-tonne mobile hire crane and work crew to operate the crane.

2. Load roof sheets and other roofing material onto the existing roof of the gymnasium.

10. There was no written contractual arrangement between Evolve and Metro regarding the work.

The Workers

11. Metro employed the following workers:

1. Mr Grant Ible, roof dogman.

2. Mr Craig Truscott, ground dogman.

3. Mr Leonard Bailey, crane operator.

4. Mr Luigi D’Alessandro, site supervisor.

12. Mr Ible first started work in the crane industry when he commenced work with Metro 18 months before the incident. He held a General Construction Induction Training Card Licence and a High Risk Work Licence in relation to dogging. Mr Ible’s general tasks involved hooking and unhooking loads and directing the crane.

13. Mr Truscott had performed crane work for 17 years. Mr Bailey had performed dogman work for over 10 years.

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

The Proposed Work

15. The existing roof was approximately 10-13 metres above the ground. The roof had 12 skylight bays, which were made of translucent polycarbonate material approximately 1 metre wide and 7 metres long. The skylights were made from fibreglass. They were broken and leaking in parts.

16. Evolve was to remove the existing roofing sheets and skylights. The roofing sheets were to be replaced with new sheets each spanning about 22 metres long. The skylights were to be replaced with “web glass” containing safety mesh.

17. The roof had pre-existing anchor points installed. There was no safety mesh underneath the skylight bay sections of the roof. The only access point to the roof was via a window on the second floor of the building adjacent to the gymnasium. There was no safety railing or edge protection when accessing the roof.

Prior Site Visits

18. On 3 December 2019 Mr Nathan Rees, director of Evolve, called Mr D’Alessandro regarding the work. Mr D’Alessandro indicated that he would attend the site to discuss the type of crane needed for the job.

19. On 4 December 2019 Mr Adam Rees and Mr D’Alessandro were on site to discuss the work, including the size and positioning of the crane. A larger crane would be needed if it was required to span to the far side of the roof. They also discussed where to the land the sheets on the roof and how to access the roof. They observed the roof from the window but did not go onto the roof.

20. As a result, the crane booked by Evolve was not intended to access the entire span of the roof. It was agreed between Metro and Evolve that the roof sheeting would be placed in the middle of the skylights by the crane and then moved by Evolve workers to its correct position.

The Incident

21. On 6 December 2019 Metro workers arrived at approximately 7.00am. Neither Mr Wilkinson nor Mr D’Alessandro attended site.

22. The Metro workers had not been informed who was to perform each role on the site. The workers decided between themselves that Mr Ible would perform roof dogman duties by guiding the roofing sheets and material to their landing place on the roof and Mr Truscott would remain on the ground as ground dogman.

23. Prior to commencing work on the roof, Mr Ible looked in the side box of the crane for a harness so he could “swing the jib fly” for the crane, which involved working at heights to configure the crane’s boom and jib. Mr Ible was unable to find a harness and performed the task using a ladder instead.

24. After the crane was set up Mr Ible and Mr Rees accessed the roof. Mr Taylor remained on the ground together with Mr Truscott, who was to attach and direct the loads to the roof. Mr Bailey operated the crane.

25. Mr Rees told Mr Ible where the loads were to be landed. Mr Ible then communicated landing instructions via radio to the Metro workers on the ground. As they were in the process of landing the roofing sheets Mr Rees and Mr Ible walked across the roof and stepped over the skylight bays.

26. At about 2.15pm 10 bags of wool insulation were being lifted using slings to be landed on the roof near Mr Ible. The wind picked up causing the bags to spiral towards Mr Ible, who was standing near the ridge area of the roof.

27. Mr Rees and Mr Ible both tried to grab the bundle to stop it swinging towards Mr Ible. In the process Mr Ible stepped backwards onto a skylight. He fell through the skylight to the floor approximately nine metres below.

28. Mr Ible suffered the following injuries:

1. Extra/subdural 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 being a minimally displaced left inferior pubic ramus, left iliac wing and left sacral ala.

Systems of Work Prior to the Incident

29. No toolbox talk was carried out between the Metro workers on the day of the incident to discuss working at height risks.

30. Neither Mr Adam Rees nor Mr Ible were wearing harnesses when accessing or working on the roof. 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.

31. 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.

32. Mr Wilkinson did not take steps to ensure there was a system in place preventing Mr Ible from conducting work on the roof without a harness with an appropriate static or safety line.

33. Metro’s response to a s 155 Notice issued by SafeWork NSW states that Metro knew that the skylights were a hazard.

34. Metro had a generic Safe Work Method Statement (SWMS) dated 24 June 2019. Mr Ible recalls signing a SWMS the morning of the incident. However, the content of the SWMS was not discussed. The Metro workers did not see any safety documentation from Evolve.

35. The SWMS stated:

1. “Site inspection and hazard identification process to be conducted. All hazards must be controlled if not able to be eliminated”.

2. With respect to the task of “Dogman to move into position for lift” the identified risk includes “slip & trip”, for which the control measure is “wear PPE (gloves)”.

3. The “general” portion of the SWMS regarding plant and equipment available notes that “A full Safety Harness with front or rear anchor points to be used. Lanyards should be used with a personal energy absorber. All tags on equipment should be clearly identifiable, inspections shall be recorded via harness register every 3 months”.

36. Metro’s Pre-Job Inspection & Toolbox Talk Form contained the following:

1. Question 8 “Is fall protection required?” is answered “no”.

2. Question 11 “Do you have all appropriate PPE?” is answered “yes”.

3. Question 13 “Any other points of concern?” is answered “no”.

4. Question 15 “Any further JSA or method statements required?” is answered “no”.

5. Question 16 “Are the company job requirements and instructions satisfactory?” is answered “yes”.

37. Mr Wilkinson occasionally attended Metro worksites to perform initial assessments prior to starting a job or to check on works underway. He had not attended this site and was not involved in the consulting process with Evolve.

38. Mr Wilkinson did not take steps to ensure that an adequate risk assessment with respect to work at heights for the proposed work had been performed or that the SWMS adequately addressed the risks associated with that work. He did not take steps to enquire about the existence of safety meshing under the skylights, barriers, or skylight covers.

39. There was no prohibition stating that workers were not to work on the roof without fall protection equipment. There was no supervisory process or procedure in place to ensure this did not occur. There was neither a Metro nor Evolve site supervisor on site.

40. Metro stated in its s 155 response that it was the responsibility of each worker on site to adhere to the SWMS. However, Mr Wilkinson did not take steps to confirm that the the steps in the SWMS were followed, nor to confirm there were sufficient harnesses and lanyards available for use on the day of the incident.

41. In some cases, Metro provided its SWMS to its client for approval prior to commencing works. Absent prior approval, it was Metro’s policy for clients to sign off on the SWMS on site. This did not occur and Metro did not take steps to confirm whether it had occurred. Metro would generally use the harnesses provided by the roofing companies that engaged them.

42. Metro’s SWMS and Pre-Job Inspection Form were not provided to Evolve. Metro did not request a copy of any SWMS, Job Safety Analysis or risk assessment conducted by Evolve.

43. Mr Ible was not provided with training on how to correctly use or a check a harness. He had not undergone safety training and did not recall any discussion occurring regarding working at height. At the commencement of his employment with Metro, Mr Ible received two weeks on the job dogman training under the supervision of an experienced dogman. He was not supervised when performing dogman duties after this.

Guidance Material

44. Clause 78 of the Work Health and Safety Regulation 2017 refers to the use of barriers to prevent a fall.

45. The SafeWork NSW Code of Practice, Managing the Risks of Falls at Workplaces, August 2019 (the Falls Code), was available to Metro. 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.

1. At par 3.3 a reference to risk assessment and a recommendation that when assessing the risks arising from each fall hazard there should 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”.

46. The Safe Work Australia Information Sheet, Safe Work on Roofs, January 2016 was also available to Metro. 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”.

47. 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”.

48. The SafeWork NSW Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, 2009 (the Roof Code) was also available to Metro. 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”.

49. 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 Following the Incident

50. Following the incident Metro engaged Kerrect Group Pty Ltd to install safety netting under the entirety of the roof before recommencing the roof works at a cost of $19,907 plus GST.

51. Metro revised its SWMS to include the identification of falls risk and implemented new systems, including working at heights training and refreshers. The revised SWMS stated:

“a. Dogman shall inspect work area for warning notices, existence of fragile materials (i.e. skylights, penetrations), existence of safety mesh, existence of certified anchor points, risk of falling through any unprotected edge. Where safety wire mesh is not confirmed, roof shall be considered unmeshed. Complete toolbox talk. Task specific requirements must be documented on toolbox.

b. Only trained personnel shall work at height. Personnel shall wear inspected and fit for purpose harness and lanyard. Attach lanyard to anchor points on roof. Double lanyard where when exiting one area to another.”

Evidence for the Defendant

52. Mr Nathan Harrison swore an affidavit on 1 May 2023 (DX 1). He is the director of Metro. At the time of the incident, he was a shareholder of Metro, but not a director.

53. Mr Wilkinson, the sole director of Metro at the time of the incident, offered financial support to Mr Ible and his family.

54. Upon his return to work, Mr Ible was also offered a number of roles to assist in his rehabilitation and retraining for his future employment. Ultimately Mr Ible declined those offers and, as a result, his employment with Metro was finalised.

55. Mr Harrison expressed his regret for the incident and its effect on Mr Ible. Mr Harrison, as director of Metro, accepted that the system of work in place at the time of the incident was inadequate.

56. Following the incident Metro retained a Work, Health and Safety Consultant to revise its policies and procedures, including its SWMS. Metro now mandates that harnesses are in cranes operated by Metro’s employees.

Consideration

57. 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

58. 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].

59. 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].

60. 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.”

61. 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].

62. 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.

63. 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.

64. 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.”

65. 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.”

66. 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.”

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

1. The risk posed by the fragile and unguarded skylights was actually known to Metro and was specifically referred to in guidance material.

2. The likelihood of the risk occurring was significant. Working on roofs requires moving around and dealing with unpredictable events, such as a load swinging.

3. The potential consequences of the risk were death or serious injury.

4. Simple steps could and should have been taken to eliminate or minimise the risk.

5. There was no great burden or inconvenience of implementing those steps.

6. The harm caused was the serious injuries suffered by Mr Ible.

7. 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.

8. I accept the submission of counsel for the prosecutor (MFI 1, pars 20-32) that Metro failed in its duty under the Act in multiple ways:

1. There was no toolbox talk between Metro workers.

2. Mr Ible was not wearing a harness and could not find one in the crane.

3. The Metro crew did not see the Evolve SWMS.

4. Mr Wilkinson took no steps to ensure that work was conducted while wearing safety harnesses.

5. Metro admitted that it knew of the hazard posed by the skylights but did not pass this on to its workers.

6. The Metro SWMS was generic not site-specific.

7. The pre-job inspection report did not note the skylights as a hazard and stated that fall protection was not required.

8. There was no appropriate supervision on the site.

9. Mr Ible was not trained on how to use or check a harness.

9. Metro and Evolve each had duties under the Act. While counsel agreed that I was not strictly involved in a parity exercise, because the particulars of the charge against each defendant were different, I find that the objective seriousness of the offence committed by Metro is roughly the same as that of Evolve. Metro put its employee Mr Ible onto the roof without adequate training or supervision or a harness. Evolve however had overall control of the site. In addition, the pleadings in Evolve cast a duty upon it to install safety mesh under the fragile skylights.

68. I find that the level of culpability of Metro is in the mid range.

Deterrence

69. 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].

70. I repeat what I said in SafeWork NSW v Evolve Roofing Pty Ltd [2023] NSWDC 75 at [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.”

71. The penalty must reflect the need for specific deterrence. Metro is still conducting a business. Its operations involve crane services and the continuing engagement of workers who carry out their duties at height.

Aggravating Factors

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

Mitigating Factors

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

74. Metro is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident and the support which it provided to Mr Ible demonstrate this. Metro has been in business for six years.

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

76. Metro 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.

77. Metro has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The affidavit of Mr Harrison (DX 1) provides evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Ible was caused by its actions.

78. Metro 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. The matter first came before this court for directions on 31 January 2022. A plea of not guilty was entered on 23 May 2022 and the matter was set down for a 5-day trial to commence on 5 December 2022. The trial date was confirmed on 7 November 2022. The matter was listed on 2 December 2022 when the prosecutor was granted leave to file an Amended Summons and an Agreed Statement of Facts. Metro then entered a plea of guilty and the trial dates were vacated. It is appropriate to give Metro a 10% discount for its plea of guilty.

79. Metro 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

80. 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.

81. 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.”

82. There was no submission about capacity to pay, so this issue does not arise.

Costs

83. There will be an order that the defendant is to pay the prosecutor’s costs.

Penalty

84. My orders are:

1. Metro Crane Services Pty Limited is convicted.

2. The appropriate fine is $400,000 but that will be reduced by 10% to reflect the plea of guilty.

3. Order Metro Crane Services Pty Limited to pay a fine of $360,000.

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 Metro Crane Services Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 10 May 2023