SafeWork NSW v Perry's Roofing Pty Ltd - [2022] NSWDC 261

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261
Hearing dates: 5 July 2022
Date of orders: 14 July 2022
Decision date: 14 July 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Perry's Roofing Pty Ltd is convicted.
(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Perry's Roofing Pty Ltd to pay a fine of $450,000.
(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 Perry's Roofing Pty Ltd to pay the prosecutor’s costs.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements
COSTS – prosecution costs
OTHER – defendant engaged in residential and commercial roofing work including slate roofing and asbestos removal – workers engaged in dismantling edge protection while standing on roof – worker suffered fatal injuries after he was electrocuted – contact between energised power lines and steel hand rail worker was holding – second worker suffered severe flash burns to legs – failure to ensure site-specific risk assessment had been conducted – failure to ensure power lines were de-energised prior to roofing works being undertaken – failure to provide, implement and enforce adequate Safe Work Method Statement for roofing work

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32, 238
Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299

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
Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36
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
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling
SafeWork Australia, General Guide for Working in the Vicinity of Overhead and…

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: [2022] NSWDC 261
Decision Date: 14 July 2022

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Perry's Roofing Pty Ltd in the Local Court of New South Wales. The prosecution arose from a workplace incident where a worker was electrocuted and another suffered severe flash burns while dismantling edge protection on a roof. The incident occurred due to contact between energised power lines and a steel hand rail the worker was holding. The prosecution alleged that Perry's Roofing Pty Ltd failed to conduct a site-specific risk assessment, did not ensure power lines were de-energised, and did not provide an adequate Safe Work Method Statement for the roofing work.

The court had to determine the appropriate penalty for the breaches of work health and safety laws, taking into account the objective seriousness of the offence, mitigating and aggravating factors, the company's plea of guilty, and the need for general and specific deterrence. The court also needed to consider the company's capacity to pay an appropriate penalty and the impact on the victims. The prosecution sought a substantial fine, costs, and an order for a portion of the fine to be paid to the prosecutor.

The court found Perry's Roofing Pty Ltd guilty and imposed a fine of $600,000, reduced by 25% due to the early plea of guilty. The court ordered the company to pay $450,000 in fines and mandated that 50% of this amount be paid to the prosecutor. Additionally, the court ordered the company to pay the prosecution's costs. The court emphasised the importance of work health and safety compliance to prevent such tragedies in the future.

Orders

Orders of the court

(1) Perry's Roofing Pty Ltd is convicted.

(2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Perry's Roofing Pty Ltd to pay a fine of $450,000.

(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 Perry's Roofing Pty Ltd to pay the prosecutor’s costs.

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 Perry's Roofing Pty Ltd [2022] NSWDC 261
Hearing dates:	5 July 2022
Date of orders:	14 July 2022
Decision date:	14 July 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Perry's Roofing Pty Ltd is convicted. (2) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Perry's Roofing Pty Ltd to pay a fine of $450,000. (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 Perry's Roofing Pty Ltd to pay the prosecutor’s costs.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statements COSTS – prosecution costs OTHER – defendant engaged in residential and commercial roofing work including slate roofing and asbestos removal – workers engaged in dismantling edge protection while standing on roof – worker suffered fatal injuries after he was electrocuted – contact between energised power lines and steel hand rail worker was holding – second worker suffered severe flash burns to legs – failure to ensure site-specific risk assessment had been conducted – failure to ensure power lines were de-energised prior to roofing works being undertaken – failure to provide, implement and enforce adequate Safe Work Method Statement for roofing work
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 32, 238 Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299
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 Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection – Installation and Dismantling SafeWork Australia, General Guide for Working in the Vicinity of Overhead and…