SafeWork NSW v Topdeck Scaffolding Pty Limited

[2024] NSWDC 215

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Topdeck Scaffolding Pty Limited [2024] NSWDC 215

Hearing dates:

7 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Topdeck Scaffolding Pty Limited is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Topdeck Scaffolding Pty Limited to pay a fine of $150,000.

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

(5)   Order Topdeck Scaffolding 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 – scaffolding – scaffolding inadequately secured – containment sheeting and signage – wind – scaffolding collapse – strikes adjacent building – damage to neighbouring apartment

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, 155

Work Health and Safety Regulation 2017 (NSW) cl 291

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

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 1576:1:2019 Scaffolding, Part 1: General Requirements, 4 March 2019

Australian Standard 1576:6:2020 Scaffolding Part 6: Metal Tube and Coupler Scaffolding – Deemed to Conform to AS/NZS 1576:1, 6 March 2020

Australian Standard 4576:2020 Guidelines for Scaffolding, 2020

Safe Work Australia General Guide for Scaffold and Scaffolding Work, July 2014

SafeWork NSW Erecting, Altering and Dismantling Scaffolding – Part One: Prefabricated Steel Modular Scaffolding, 31 March 2021

SafeWork NSW Safety Alert Scaffolding Collapse, 6 July 2020

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Topdeck Scaffolding Pty Limited (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
I Latham (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Wotton & Kearney (Defendant)

File Number(s):

2023/119808

Judgment

1. Topdeck Scaffolding Pty Limited (Topdeck) was contracted to provide, erect and dismantle scaffolding at a residential apartment block. On 9 April 2021 wall ties securing the scaffolding to the building were inadequate and after gusts of wind the scaffolding collapsed, striking an adjacent building. The scaffolding collapse damaged an apartment in a neighbouring building. The residents of that apartment were at home when the scaffolding collapsed. Fortunately, they were not injured.

2. Topdeck has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Ms Kim McGrath and Ms Emma McGrath to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,766,130.

The Risk

4. The risk described in par 11 of Annexure A of the Summons (PX 1, Tab 1) is as follows:

“The risk was the risk of other persons, including Kim McGrath and Emma McGrath, suffering serious injury or death as a result of being struck, or otherwise impacted, by collapse of scaffolding.”

Reasonably Practicable Measures

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

“The defendant failed to ensure, so far as is reasonably practicable, that the health and safety of other persons, including Kim McGrath and Emma McGrath, was not put at risk from work carried out as part of its business or undertaking, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers [by]:

Undertaking a risk assessment (or developing a scaffolding plan) for the scaffolding works which:

Identified the risk;

Assessed the risk, having regard to the dead and live loads that could reasonably be expected to be applied to the scaffolding during the period it was in use, such as installation of containment sheeting and advertising signage, wind, and other impact forces;

Developed adequate controls to managing the risk;

Adequately securing the scaffolding to the building using a sufficient number of wall ties, as described in the available guidance material and/or manufacturers specifications;

Developing and implementing a site-specific documented Safe Work Method Statement (SWMS) for the scaffolding works, which set out a method of work for the installation of wall ties based upon the risk assessment;

Engaging a competent person, such as a structural or temporary works engineer, to provide information on how the scaffolding was to be tied to the building and/or to confirm the structural adequacy of the scaffolding;

Undertaking inspections, or adequate inspections, periodically and following alterations to the scaffolding, to confirm it remained adequately secured to the building;

Providing information, instruction and training to workers on undertaking risk assessments and implementing controls to adequately secure scaffolding to building or structures, such as those referred in paragraphs (a) – (e) above.”

Background

6. The parties presented an Agreed Statement of Facts dated 3 June 2024 (PX 1, Tab 2) and this material is summarised below.

7. Topdeck was a person conducting a business or undertaking (PCBU) that involved the installation and removal of scaffolding in the Sydney metropolitan area. Topdeck owned a modular galvanised steel scaffolding system (the “Kwikstage” scaffold system).

8. Topdeck was engaged by Loka Building Pty Ltd (Loka) to provide and erect perimeter scaffolding at a residential apartment block located at 78 Lauderdale Avenue, Fairlight NSW (the site). The purpose of the scaffolding was to enable workers to undertake window and eave replacement works.

9. At all material times Topdeck engaged a number of workers, including:

1. Nick Wilson (working director).

2. Junior Kapeli Chantung (supervisor). He held a High Risk Work (HRW) licence (class SA) but it had been cancelled prior to the commencement of the scaffolding works.

3. Ben Pickering. He held a valid HRW licence (classes SB, SI and SA).

4. Wesley Thomas Holameitonga. He held a valid HRW licence (class SB) from 21 December 2018.

5. Eric Whitfield. He held a valid HRW (class SB) licence from 5 October 2018.

6. Quincy Holameitonga.

10. The apartment building was situated on a south-facing sloping block. The roof line was 11.2m at the front (south side) and approximately 4.2m at the rear (north side). The face of the eastern elevation south of the return was approximately 12m in length (the eastern elevation). The eastern face of the building contained a return of approximately 1.7m about halfway along the building.

11. The scope of Topdeck’s work included the erection of scaffolding to the perimeter of the building, other than the northern elevation. The scaffolding was to be three boards wide with three to four levels of boards and stair access to the towers. The top level of the scaffolding was to be approximately 1.8m below the eaves.

12. From 11 January 2021 to 15 January 2021 Topdeck erected the scaffolding to the western, southern, and eastern elevations. Approximately 11 bays of scaffolding were erected on the eastern elevation. The scaffolding on the eastern elevation was three boards wide with captive wedge type connections. The scaffold along the eastern elevation had a step-in approximately halfway along to follow the shape of the building. The scaffolding to the south of the step-in (six bays) extended beyond the eastern elevation and was connected to the scaffolding along the southern elevation.

13. During the installation of the perimeter scaffolding wall ties were installed to fix the scaffolding to the building. Topdeck’s method of work for installing wall ties was:

1. Mark the wall of the building where the holes were to be drilled.

2. Drill a hole into the wall.

3. Bolt a wall tie bracket to the wall.

4. Mount the bracket to the scaffold using a 90-degree coupler.

14. Topdeck used 12mm by 100mm galvanised steel dynabolts. The bolts were attached to the wall using a 24mm ratchet impact tool or were tightened by hand.

15. In total, up to five wall ties were used to secure the scaffold to the eastern elevation. One tie was installed to the north of the step-in. Two ties were installed around the area of the step-in. One tie was installed to the south of the step-in.

16. Topdeck did not undertake any assessment to determine how many ties were required to adequately secure the scaffolding to the eastern elevation of the building. The number of ties installed was significantly less than were required by the relevant guidance material and manufacturer’s specifications. Containment sheeting was subsequently fitted to the outside face of the scaffolding.

17. Following the erection of the scaffolding, Topdeck (Mr Chantung) issued Handover Certificate No 3921 (PX 1, Tab 9) for the perimeter scaffolding to Loka. The Handover Certificate noted that the scaffolding was eight metres in height with three working levels. The Handover Certificate stated that the scaffolding had been erected in a safe manner according to the rules and regulations, or in the absence of such rules and regulations, to tried and tested practices.

18. In or around mid-January 2021, Loka installed advertising signage on the eastern elevation scaffolding. The advertising banner was attached to the southernmost bay of the scaffolding and lapped around the southern corner of the bay. The banner extended the entire height of the four-level scaffolding.

19. On 10 February 2021 and 12 March 2021, Topdeck (Mr Chantung) undertook inspections of the scaffolding, and each time issued a further Handover Certificate. The certificates noted that the ties had been checked and remained full and tightened and that the scaffolding remained in its original state.

20. On 7 April 2021, Topdeck removed the scaffolding from the southern face of the building. The purpose of removing this elevation was to enable tradesmen to undertake waterproofing and tiling work on the balconies. The scaffolding on the eastern and western elevations was to remain, to enable balustrading work to be completed in May 2021.

21. On 7 April 2021 the Topdeck workers present at the site were Mr Chantung, Mr Pickering, Mr Wesley Holameitonga and Mr Whitfield. Mr Chantung was responsible for supervising the works. The dismantling work was undertaken by Mr Wesley Holameitonga and Mr Whitfield.

22. During the dismantling process the brackets that joined the southern elevation to the eastern and western elevations were removed. Once the scaffolding was dismantled the eastern elevation scaffolding extended approximately one and a half bays beyond the front southern edge of the building. The advertising banner remained in place.

23. During the dismantling of the southern elevation scaffolding, additional ties were placed on the western elevation scaffolding to secure it to the building, however no additional ties were placed on the eastern elevation scaffolding.

24. Once the southern elevation scaffolding was dismantled Mr Chantung inspected the scaffolding on the western elevation. Mr Chantung did not inspect the eastern elevation scaffolding. In Mr Chantung’s SafeWork NSW (SafeWork) Record of Interview he said that he relied on the other workers informing him that the scaffolding was secure.

25. Following his inspection, Mr Chantung issued Handover Certificate No 4140 (PX 1, Tab 12) to Loka. The Certificate stated that the scaffolding had been erected in a safe and efficient manner according to the rules and regulations and in the absence of such rules and regulations to tried and tested practices.

9 April 2021

26. On 9 April 2021 between approximately 6.03pm and 6.24pm, gusts of wind between approximately 52 km/h and 59 km/h were recorded in Sydney and around the area of the site.

27. At approximately 6.58pm on 9 April 2021 the ties on the eastern elevation scaffolding failed and six bays of the eastern elevation scaffolding collapsed. The collapse initiated at the southern end of the scaffolding, where the was no return and no ties on the end bay securing the scaffold to the building. In addition, there was both signage and containment sheeting installed on to the outside face of the end three bays which increased lateral wind loading on the scaffolding.

28. The scaffolding collapsed outwards and struck a unit in the neighbouring building, with some components smashing through a living room window.

29. The damage to the neighbouring apartment block included damage to windows, kitchen cupboards, floorboards and brickwork.

30. The tenants of the neighbouring apartment, Ms Kim McGrath and her daughter Ms Emma McGrath, were in the apartment at the time of the incident.

31. Topdeck determined that the cause of the collapse was:

1. Two strong gusts of wind.

2. The builder’s advertising sign and containment mesh increased the lateral wind loading on the scaffold (acting like a sail).

3. There were insufficient ties securing the scaffolding to the building and the bolts had dislodged causing the scaffolding to dislodge from the building.

32. At the time of the eastern elevation scaffolding collapse, none of Topdeck’s workers were present at the site.

Relevant Legal Obligations and Guidance Materials

33. The scaffolding was “high risk construction work” within the meaning of cl 291 of the Work Health and Safety Regulation 2017 (NSW) because it involved a risk of falling more than two metres. Accordingly, Topdeck was required to ensure that a Safe Work Method Statement (SWMS) was prepared for the work. The SWMS had to specify the hazards and the risks to safety associated with those hazards, describe the measures to be implemented to control the risks, and describe how the control measures were to be implemented, monitored and reviewed. Topdeck was also required to put into place arrangements to ensure compliance with the SWMS.

34. Prior to the incident SafeWork published the Safe Work Australia General Guide for Scaffold and Scaffolding Work, July 2014 (General Guide) (PX 1, Tab 13). The General Guide was available to Topdeck before the incident and relevantly provided:

1. The primary objective of scaffold planning and design is to prevent scaffold collapse before, during and after placement of the scaffold. The collapse of a scaffold can cause death or significant injury to workers or passers-by and damage to structures.

2. No part of the scaffolding work should adversely affect the structural integrity of other buildings. The PCBU should ensure risk control to prevent injury to other people or damage to adjacent buildings or structures from the collapse of the scaffold onto an adjacent building or structures.

3. A scaffold should be designed for the most adverse combination of dead and live loads that can reasonably be expected during the period the scaffold is in use. Live loads include environmental loads, eg wind, rain and impact forces.

4. If scaffolding is to be altered at the workplace, a PCBU is to consider any new loads that may apply and consult the scaffold designer. For example, wind and rain loads may increase if perimeter containment, shade cloth or signs are attached to the scaffold.

5. Control measures for tying scaffolding include:

1. Using more ties if the scaffolding is sheeted or netted due to increasing wind loadings.

2. Regularly inspecting scaffold ties to check they are not modified or altered.

3. Not attaching extra loads to the scaffold, eg signs and perimeter containment sheets, without first consulting a competent person such as a scaffold design engineer or the supplier.

4. Using cast-in anchors or through bolts that pass through a wall in preference to expansion or chemical anchors for securing scaffold ties because of possible failure.

6. A scaffolding plan should include a site layout plan and detail the elevations and sections of the scaffold and should address:

1. Dead loads resulting from the size and weight of the scaffolding.

2. Containment sheeting.

3. Tying and anchors (where anchors will be placed on the supporting structure and the types of anchors to be used).

7. PCBUs should ensure that alterations are in accordance with the scaffolding plan and do not compromise the structural integrity of the scaffold.

35. Prior to the incident SafeWork published a document titled “Erecting, Altering and Dismantling Scaffolding – Part One: Prefabricated Steel Modular Scaffolding”, 31 March 2021 (SafeWork Guide) (PX 1, Tab 14). The SafeWork Guide was available to Topdeck before the incident and relevantly provided:

1. Under the heading “Design Assumptions”, every second standard must be tied to a supporting structure of adequate strength, at four-metre (maximum) vertical intervals.

2. A diagrammatic illustration of a “typical” tie pattern, which includes ties being placed on the end standards at a maximum of four-metre vertical spacing and on each other standard at a maximum of eight-metre vertical spacing, staggered to give four metres spacing on rows of ties.

3. A scaffold configuration and design checklist to confirm that every second standard has been tied to the supporting structure of adequate strength at (maximum) four-metre vertical intervals.

4. Appendix A which prescribes configurations of prefabricated scaffolding that can be erected without the need to have the adequacy of the erected scaffold structure assessed by an engineer.

36. Australian/New Zealand Standard 1576:1:2019 Scaffolding, Part 1: General Requirements, 4 March 2019 (AS/NZS 1576:1:2019) (PX 1, Tab 15) relevantly stated that when determining scaffold tie patterns the following should be taken into account:

1. A high scaffold may result in large self (dead) and imposed (live) loads acting vertically, in addition to imposed (live) loads acting horizontally on the lower standards of the installation, and consequently may require additional ties at the lower levels to provide extra lateral restraint to the standards. Horizontal imposed (live) loads can result from wind action on containment sheeting.

2. Adjacent buildings or structures may induce higher wind actions due to a tunnelling effect.

3. Brick walls may not be able to sustain imposed lateral loads. Some scaffold ties may not be able to be installed in the required positions. The scaffold installation designer should then ensure that each tie that is to be installed is able to sustain the additional load or it may be necessary to specify additional ties to compensate.

37. Australian Standard 1576:6:2020 Scaffolding Part 6: Metal Tube and Coupler Scaffolding – Deemed to Conform to AS/NZS 1576:1, 6 March 2022 (AS 1576:6:2020) (PX 1, Tab 16) provided that if freestanding stability is not satisfied, the scaffold should be tied to a laterally supportive structure and the following shall apply:

1. Each tie shall be connected to not less than two standards or ledgers within 600mm of a standard with the right-angle couplers.

2. The distance between the end of the scaffold and the first tie at any level shall not exceed (i) one bay in the case of a scaffold with no return; or (ii) three bays in the case of the scaffold with a return.

3. The distance between longitudinally adjacent ties at any level shall not exceed three bays.

4. The vertical distance between the supporting surface on the first level of ties shall not be greater than three times the least base width, subject to a maximum of four metres.

5. The vertical distance between adjacent levels of ties shall not exceed four metres.

6. Figure 3.8 shows a typical tie pattern.

38. Australian Standard 4576:2020 Guidelines for Scaffolding, 2020 (AS 4576:2020) (PX 1, Tab 17) provides that scaffolding fitted with encapsulation has increased dead loads and is exposed to increased wind and rain loads. The design of such scaffolds and ties should be checked by a competent person such as an engineer experienced in scaffold design. The design of encapsulated scaffolding should consider, amongst other things, the wind load on the scaffold and the supporting structure, the position of sheeted scaffolding in relation to adjacent structures and the possible local increase in wind speeds through narrow gaps between such structures.

39. Prior to the incident, on 6 July 2020 SafeWork issued a Scaffolding Collapse Safety Alert (Safety Alert) (PX 1, Tab 18) which highlighted two recent scaffolding collapses in NSW. The Safety Alert was published online and was available to Topdeck. The Safety Alert detailed the potential risks of a scaffold collapsing and provided information to prevent a collapse from happening.

Systems of Work Prior to the Incident

40. Topdeck’s Quote Form for the job at the site set out an overview of the number of bays to be installed by the workers, but it did not involve any assessment of how the scaffolding was to be secured to the building.

41. On 6 January 2021 Topdeck provided Loka with its SWMSs. The SWMSs set out different work activities including “Unloading Truck”, “Remove Strapping”, “Picking Up Gear Out of Pallets”, “Carrying Gear to Point of Erection”, “Erection of Scaffold” and “Dismantle of Scaffolding”. The SWMSs did not provide any information about specific hazards or risks associated with the work at the site.

42. The “Erection of Scaffold” SWMS (PX 1, Tab 19) was last revised in November 2019. The SWMS provided general information on the work activity. The SWMS did not provide any information on how ties were to be installed to secure scaffolding to an adjacent building or structure.

43. The “Dismantle of Scaffolding” SWMS (PX 1, Tab 20) was last revised in November 2019. The only reference to wall ties in the “Dismantle of Scaffolding” SWMS was a job step of “inspecting scaffolding for debris and loose material [to] ensure ties are still in situ, reinstate missing boards and handrails”.

44. Neither the Quote Form nor the SWMSs addressed the loads likely to be placed on the scaffolding, the containment sheeting, or where anchors and ties were to be placed to secure the scaffolding to the building.

45. Topdeck did not conduct a risk assessment or any planning of the scaffolding to prevent its collapse.

46. Topdeck did not assess whether the eastern elevation scaffolding was adequately secured following the installation of the containment sheeting and the advertising banner and the removal of the southern elevation scaffolding in April 2021.

47. Topdeck did not install adequate ties on the eastern elevation scaffolding. Topdeck relied on its workers to determine the number and location of wall ties.

48. Generally, a supplier/manufacturer of a scaffold system will provide a tie pattern appropriate for basic configurations of that system. In the absence of manufacturer/supplier instructions, guidance is found in the SafeWork Guide or in AS 1576:6:2020.

49. Tie patterns that do not conform to manufacturer/supplier instructions or the above guidance documents should be assessed by a competent person, such as a structural or temporary works engineer, to confirm the adequacy of the scaffolding.

50. The typical tie pattern in the SafeWork Guide required at least 10 ties to be installed. The tie pattern in the SafeWork Guide could be used for unsheeted scaffolding or for scaffold with containment sheeting which had a minimum of 20% porosity.

51. The typical tie pattern in AS 1576:6:2020 required seven ties to be installed. However, AS 1576:6:2020 excludes scaffold supporting any form of containment sheeting, whereas the SafeWork Guide allows sheeting with a minimum porosity of 20%.

52. The tie pattern for a Kwikstage scaffolding system for a sheeted scaffold required 30 ties to be installed.

53. The available guidance material provided that using more ties should be considered if the scaffolding is sheeted or netted due to increased wind loadings.

54. Topdeck installed five ties to attach the six bays of scaffolding that collapsed (the eastern elevation scaffolding south of the return). Topdeck had additional ties available to it at its yard in Brookvale, NSW.

55. Prior to the incident Topdeck did not seek advice from a competent person, such as an engineer, to obtain information on how the scaffolding was to be attached to the building, including information on the loads to be applied on the scaffolding because of the containment sheet and the advertising banner.

56. Topdeck did not adequately inspect the scaffolding. Following the dismantling of the southern elevation scaffolding, Mr Chantung did not inspect the eastern elevation scaffolding to verify its structural stability. Mr Chantung said that he relied on the information provided by the other workers that the scaffolding was securely attached to the building.

57. Topdeck did not provide its workers with information, training, and instruction on undertaking risk assessments and/or developing scaffolding plans and methods to be used to secure scaffolding to a building, to minimise the risk of a collapse.

Steps Taken After the Incident

58. On 10 April 2021 Topdeck dismantled the collapsed scaffolding.

59. On 13 April 2021 Topdeck installed six additional wall ties to the scaffolding on the western elevation to minimise the risk of collapse.

60. Topdeck has made available to its staff site instructions, procedures, manuals and training documents via Microsoft Teams.

Evidence for the Defendant

61. Mr Nicholas John Wilson affirmed an affidavit on 22 May 2024 (DX 1). The folder of annexures to the affidavit was marked as Exhibit DX 2. Within DX 2 each annexure was marked with “NW” and a number. Mr Wilson is Topdeck’s sole director and secretary.

62. Mr Wilson has been Topdeck’s director since it was registered on 25 October 1994. Mr Wilson is also a qualified advanced scaffolder with over 30 years of experience.

63. As Topdeck’s director, Mr Wilson has ultimate responsibility for Topdeck’s operations and is Topdeck’s work health and safety (WHS) representative. Mr Wilson’s spouse, Ms Kim Maree Wilson is a part owner of Topdeck and also acts as a WHS representative.

Overview of Business

64. Topdeck is a small-sized scaffolding business operating in Sydney’s northern suburbs.

65. Topdeck’s main operation is to act as a subcontractor to erect scaffolding, mainly on residential construction projects but also on some commercial projects. Topdeck is typically engaged by principal contractors, such as building companies, to provide its services.

66. Mr Wilson affirmed that neither he nor Topdeck have any prior convictions under the WHS Act. Mr Wilson also stated that before this incident no notifiable incidents have occurred for which Topdeck or its workers were responsible.

Topdeck’s WHS Personnel

67. At the time of the incident, Mr Wilson was advised by and consulted with the following managerial staff and senior scaffolding employees concerning WHS matters:

1. Kim Wilson (accounts/owner).

2. Ben Kearney (operations manager).

3. Scott Webster (leading hand).

4. Keenan Skinner (leading hand).

5. Junior Chantung (leading hand).

6. Ben Pickering (leading hand).

68. Mr Wilson annexed Topdeck’s organisation chart to his affidavit (NW-1). Mr Wilson explained that the organisation chart notes Mr Chantung’s position as a “basic scaffolder (full-time)” but that at the time of the incident Mr Chantung was a leading hand on a full-time basis.

69. Mr Wilson relied heavily on the skills, training and experience of Topdeck’s managerial and senior scaffolding employees, whom he said were all suitably qualified to manage all WHS matters on site.

70. These employees assisted Mr Wilson with WHS matters as they had relevant experience and knowledge from their work in the scaffolding industry. Mr Wilson said that leading hands possessed skills that required them to be aware of safety risks and of measures to be implemented when they performed works on building and construction sites.

71. As part of their duties as Topdeck employees with onsite safety responsibilities, employees were expected to report to Mr Wilson about safety matters.

Relevant Systems in Place Prior To and At the Time of the Incident

72. At the time of the incident Topdeck had policies and practices in place as part of its overall safety system. This safety system was administered by the managerial and senior scaffolding employees. These employees reported to Mr Wilson.

73. Upon employees identifying an issue requiring rectification, Mr Wilson was ordinarily consulted by the relevant member of the “senior team”. Depending on the issue, Mr Wilson would authorise whatever had to be done to rectify the issue.

74. Mr Wilson’s affidavit listed the safety systems in place at Topdeck before the incident. These systems included:

1. Employing advanced scaffolding workers and leading hands with the responsibility of minimising and mitigating risks in the scaffolding works, with a view to promoting Topdeck’s commitment to safety.

2. All new employees were trained by the leading hand scaffolders who assess their competency.

3. Authorising and requiring advanced scaffolding workers and leading hands to stop work if they saw anything they deemed a risk or unsafe.

4. Requiring leading hands or advanced scaffolders to conduct regular inspections to proactively identify and manage risks.

5. Providing employees with regular practical reminders of the grave consequences of failing to adhere to safety requirements.

6. Preparing SWMSs and having workers review and sign the SWMSs regarding scaffolding works to be conducted, before providing the SWMSs to the principal contractor.

7. Engaging in site inductions.

8. Requiring and conducting daily toolbox meetings on site.

9. Encouraging staff to report safety concerns.

10. Taking prompt action on any raised safety concern.

Safety Management Systems

75. Mr Wilson said that at the time of the incident Topdeck’s safety management system was “partly informal”. Mr Wilson said that staff competencies were observed by supervisors as part of their day-to-day site management.

76. As leading hands, Mr Webster, Mr Skinner, Mr Pickering and Mr Chantung conducted onsite supervision.

77. The leading hands, or any other workers, would report any issues to Mr Wilson. Mr Wilson addressed these issues “on an as-required basis”.

78. The standard procedure adopted on a day-to-day basis was that if a staff member experienced a problem with any equipment or scaffolding, they would cease work and approach a senior member of Topdeck’s team.

79. Mr Wilson said that there was a system of ongoing consultation and communication between the general scaffolding team, leading hands, and himself. Mr Wilson described having “an open-door policy” for communication between himself and his employees.

80. Topdeck had a policy for notifiable incidents and all staff received a copy of this policy during their induction and refresher training via daily toolbox talks and accident/incident report forms. Annexed to Mr Wilson’s affidavit is a copy of Topdeck’s incident reporting policy (NW-2).

81. Also annexed to Mr Wilson’s affidavit is a copy of Topdeck’s “WHS Diary” (NW-3) which includes examples of a general audit checklist, toolbox talks and accident/incident report forms.

82. Topdeck also had systems in place dealing with:

1. Managing WHS risks.

2. General tools and equipment.

3. Workplace management.

4. Preventing and managing fatigue.

5. Working at heights.

83. Mr Wilson annexed copies of signed Employee Acknowledgment Forms dated 19 February 2021 (NW-4), confirming that the relevant workers had read Topdeck’s policies, procedures and SWMSs.

84. Mr Wilson said that these systems have been improved since the incident. These improvements are detailed further below.

Inductions

85. At the time of the incident a scaffold worker’s induction training consisted of on-the-job training in erecting and dismantling scaffolding. The training involved demonstrations and practicing these skills under supervision.

86. Mr Wilson said that Topdeck would also verify that each worker held the appropriate HRW licence for scaffolding works and any other applicable occupational health and safety certifications. The duties and responsibilities of Topdeck employees were determined by the level of their HRW licence.

87. It was explained to scaffolders that any safety risks, hazards or incidents should be reported to a leading hand and that the leading hands would report such matters to Mr Wilson.

88. Mr Wilson stated that scaffold workers were also told that safety was important and that they must work in a safe manner and be vigilant in ensuring the safety of the scaffold and the method of work used.

The Incident

89. Mr Wilson relied on the following documents to inform himself of the relevant facts, matters and circumstances of the incident:

1. Topdeck’s incident investigation report dated 9 April 2021 (NW-5).

2. Mr Chantung’s handwritten post-incident report (NW-6).

3. Mr Chantung’s interview transcript with SafeWork dated 27 September 2021 (NW-7).

4. Topdeck’s response to SafeWork’s s 155(2) Notice No 7-399466 dated 8 July 2021 (NW-8).

90. Mr Wilson’s affidavit explained that Loka engaged Topdeck to erect scaffolding at the site in January 2021.

91. Mr Wilson said that shortly after Topdeck completed the scaffolding, Loka installed containment mesh and an advertising sign to the outside face of the scaffolding without consulting Topdeck.

92. On or around 7 April 2021 Loka instructed Topdeck to dismantle the scaffolding. Mr Wilson attended Topdeck’s yard in the morning and directed Mr Chantung (leading hand), Mr Pickering (leading hand) and Mr Wesley Holameitonga (basic scaffolder) to dismantle and inspect the scaffolding before producing the Handover Certificate.

93. After dismantling the southern elevation of the scaffolding Mr Chantung was required to check the remaining eastern and western elevations of the scaffolding to ensure that they were compliant and safe.

94. It was a requirement that a Handover Certificate be completed every 30 days or when a major change in the scaffold occurred. Mr Chantung completed Handover Certificate No 4140 dated 7 April 2021 (NW-9) which identified that the southern elevation scaffolding had been dismantled and verified that the scaffold was erected in a safe and efficient manner.

95. Mr Wilson was notified on 9 April 2021 by Mr James Hooper of Loka that the scaffolding had fallen over. Mr Wilson was informed that no workers or members of the public had been injured but that the scaffolding collapsed outwards and struck a neighbouring building, smashing a kitchen window while two residents were in the living room.

96. Mr Wilson said that he understood that prior to the scaffolding collapsing, the eastern elevation of the scaffolding had been on a lean angle for approximately 30 minutes following the first gust of wind at approximately 6.03pm on 9 April 2021. However, Mr Wilson said that he was not informed of this before the scaffolding collapsed.

97. Mr Wilson’s affidavit detailed the reported wind gusts in the Sydney Harbour and North Head area on the evening of 9 April 2021 before the scaffolding collapsed. Mr Wilson annexed to his affidavit three Bureau of Meteorology reports from April 2021 showing wind data around the time of the incident (NW-10). Mr Wilson said that these gusts caused the ties on the eastern elevation scaffolding to fail, causing the subsequent collapse of six bays of the eastern elevation scaffolding.

98. Mr Wilson understands that the incident occurred due to a combination of strong winds, the effects the containment mesh and signage had on the wind loading, and inadequate securing of the eastern elevation of the scaffolding to the building.

Actions Taken Following the Incident

99. Mr Wilson said that Topdeck took prompt action to ensure the business was WHS compliant after the incident. The immediate measures taken by Topdeck included:

1. Removing the collapsed scaffolding.

2. Installing additional wall ties to the western elevation of the scaffolding to minimise the risk of collapse.

3. Ensuring Topdeck’s workers have current HRW licences with the appropriate classification for scaffolding works.

4. Making available to its staff site instructions, procedures, manuals and training documents via Microsoft Teams.

100. Topdeck also took measures as soon as practicable after the incident to ensure that the damage to the property of Ms Kim McGrath and Ms Emma McGrath was rectified as soon as possible.

101. On or around 12 April 2021 Mr Wilson contacted his insurer to notify them of the incident and the damage caused. However, Topdeck paid up front for the damage to the adjacent apartment to ensure that the damage was rectified as soon as possible.

102. Topdeck made immediate arrangements for Ms Kim McGrath and Ms Emma McGrath to stay in a hotel, covering the costs, including meal expenses, until the damage to their apartment was rectified. Loka paid for these expenses but was reimbursed by Topdeck.

103. On 14 July 2021 Mr Wilson was notified by his insurer that the cost of the rectification works to the exterior window and kitchen area of the damaged apartment were reimbursed under Topdeck’s insurance policy.

104. To prevent a repeat of the incident, Topdeck took the following measures:

1. Developing a real time Microsoft Teams channel to upload relevant working documents, including dockets, SWMS and toolbox talk sheets which allows staff to know if they have been properly completed.

2. Implementing a Microsoft Teams channel for communication between all staff.

3. Upgrading the procedure for new employee inductions with direct access provided to new employees to the Microsoft Teams channel containing the Scaffolder Handbook, SWMSs, Australian Standards, SafeWork Guide to Scaffolding, First Aid, Employee Manual, Injury Report and WHS Diary.

4. Training leading hand scaffolders on SWMSs, toolbox talks, Handover Certificates, discussing checklists and managing conflicts with principal contractors at projects.

5. Providing internal training to scaffolders on scaffold ties.

6. Upgrading the “Yardman” procedures to manage risks in the scaffold yard.

7. Updating the forklift checklist procedures and installing warning signs.

8. Updating scaffolding work procedures for sending SWMSs, toolbox talks and Handover Certificates via Microsoft Teams, including filing and sending photographs with each handover to the principal contractors.

9. Upgrading the SWMS and WHS system to the Master Builders Association SWMS and WHS system.

10. Upgrading the scaffold design system.

11. Updating the procedure for reporting alterations to scaffolding to Mr Wilson.

12. Introducing an internal WHS Safety Committee to have quarterly meetings to discuss WHS matters.

13. Setting up an exercise channel with videos for staff to warm up.

14. Sponsoring the Master Builders Association with an option to provide 10-minute talks on scaffold safety at three agreed meetings per year.

15. Requiring Topdeck’s office manager to complete a mental health and crisis support course.

1. Requiring all scaffolding staff to complete a training course on scaffold ties and handovers and meeting with a scaffold engineer for training.

105. In addition to the above measures, Topdeck scheduled numerous training courses for their staff. These included:

1. A half-day training course for all scaffolders on 8 March 2024 which addressed:

1. How to base out scaffold, by way of demonstration.

2. Ensuring scaffolding is effectively tied to buildings.

3. Completing WHS paperwork, the requirements and why it is necessary.

4. Dealing with builders on sites.

5. Ensuring scaffolding is effectively tied to the building using various ties and anchors, by way of demonstration.

6. Instructions on what is allowed and not allowed on scaffolds.

106. Topdeck also spent $15,120 developing video content materials about scaffolding ties that could be made available to the wider scaffolding community. Mr Wilson said that this content was created in addition to reaching and developing Topdeck’s enforceable undertaking proposal.

Confirming Employee Qualifications

107. Mr Wilson’s affidavit explained that before the incident he understood that Topdeck held accurate and valid documentation for Mr Chantung, including a basic scaffolding licence, HRW licence and relevant occupational health and safety certificates.

108. Mr Wilson became aware after the incident that Mr Chantung did not hold a valid HRW licence. Mr Wilson read and relied upon Mr Chantung’s statutory declaration (annexure NW-11) and personal conversations explaining the invalid licences.

109. Mr Wilson said that Mr Chantung was initially unaware that his licence was cancelled and that he forgot to renew his licence due to personal issues. Mr Wilson understands that Mr Chantung lost his wallet in December 2015, requiring him to apply for replacement cards and licences. However, for personal reasons Mr Chantung was unable to complete these applications.

110. Regardless, Mr Wilson accepted that it was Topdeck’s responsibility to ensure that all employees hold valid qualifications to perform their work duties.

111. After becoming aware that Mr Chantung did not have a current Advanced Scaffolder HRW licence, Topdeck immediately took action to reinstate Mr Chantung’s qualifications.

112. On 16 June 2021 Topdeck received confirmation that Mr Chantung now holds a current HRW licence for basic scaffolding and forklift trucks. The email confirmation from SafeWork is annexed to Mr Wilson’s affidavit (NW-12).

113. On 6 September 2021 Mr Chantung undertook a two-week TAFE course to obtain his intermediate and advanced scaffolder qualifications.

Capacity to Pay

114. Mr Wilson understands that Topdeck is liable to pay a penalty because of the incident and Topdeck’s failures that lead to the incident.

115. Mr Wilson expressed concern that Topdeck may not be in a position to pay the penalty imposed or that the financial impact of the penalty may compromise Topdeck’s viability.

116. Mr Wilson said that Topdeck’s recent financial performance has been appreciably weak with the business making little profit.

117. Mr Wilson’s affidavit detailed Topdeck’s profits and losses from the financial year ending 30 June 2022 to the present. Mr Wilson annexed financial statements for Topdeck for the financial year ending on 30 June 2022 (NW-13), showing that Topdeck made a loss of $13,658.84.

118. In the financial year ending on 30 June 2023 Topdeck made a profit of $95,727.53, shown in annexure NW-14.

119. Mr Wilson annexed Topdeck’s balance for the period between 1 July 2023 to 16 May 2024 (NW-15). This balance sheet shows that Topdeck holds $394,494.26 in total assets with $220,534.35 in total liabilities and $173,959.91 in equity. One of the assets is “Share Holders Loan – Holding for fine $100,000”. Counsel for Topdeck explained that this was a sum of money put aside in anticipation of a fine being imposed by this court. While Topdeck has liabilities on several credit cards, the company has no bank or other borrowings.

120. Mr Wilson annexed Topdeck’s profit and loss statement for the period between 1 July 2023 to 16 May 2024 (NW-16). This showed a nett profit for the period 1 July 2023 to May 2024 of $79,029.38.

121. Mr Wilson anticipates that Topdeck will make a nett profit of no more than $90,000-$100,000 this financial year, without considering any penalty imposed by the court in this matter.

122. The balance for Topdeck’s bank account as at 15 May 2024 was $79,037.49 (NW-17). Mr Wilson said that in the month of June each year Topdeck incurs expenses including rent for the business premises, insurance premium payments and fourth-quarter employee superannuation payments. Mr Wilson believes that these expenses will reduce Topdeck’s cash in hand and therefore ability to pay a penalty.

123. Based on Topdeck’s current bank balance, Mr Wilson is concerned that Topdeck will be in a “significantly poor position” to pay a penalty. Mr Wilson is also concerned that the penalty may require him to make cost reduction measures, including terminating staff and downsizing the business to keep Topdeck viable.

Contrition

124. On behalf of Topdeck, Mr Wilson expressed “deep contrition and regret” for the incident and its consequences.

125. Mr Wilson said that he will continue to ensure that appropriate actions are taken, constantly reviewing and implementing procedures to ensure that future incidents do not occur.

126. Mr Wilson described the incident as having a “salutary effect” on himself and Topdeck’s management team and staff.

127. Mr Wilson and Topdeck’s management team acknowledged that while the incident did not cause injuries, there was an appreciable risk to the health and safety of other persons, including the risk of serious injury or death arising from the collapse of scaffolding in the vicinity of an adjacent building.

128. Mr Wilson apologised on behalf of Topdeck and offered an “unreserved” apology to Ms Kim McGrath and Ms Emma McGrath.

129. Mr Wilson acknowledged that while it is not possible to correct the actions of the past, Topdeck is committed to a safer future for its workers. Topdeck is glad that the measures taken since the incident have resulted in no other incidents, giving them confidence in their safety systems and controls.

Consideration

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

Objective Seriousness of the Offence

131. 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].

132. 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].

133. 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.”

134. 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].

135. 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.

136. 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.

137. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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.”

138. 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.”

139. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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.”

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

1. The risk was actually known by Topdeck. Further, Topdeck should have known of the risk by reason of the guidance material. I reject the submission by counsel for Topdeck that the risk was not obvious. Scaffolding is supposed to be designed and installed to deal with high winds or loading caused by mesh or banners.

2. The likelihood of the risk occurring was significant, given the inadequate number of ties.

3. The potential consequences of the risk were death or serious injury. Fortunately, neither happened.

4. There were steps which could and should have been taken to eliminate or minimise the risk.

5. There was no particular burden or inconvenience involved in taking appropriate precautions. Topdeck was conducting a commercial operation and could have factored any cost into its price.

6. The maximum penalty for the offence is a fine of $1,766,130, which reflects the legislature’s view of the seriousness of the offence.

141. I find that the level of culpability of Topdeck is in the lower end of the mid range.

Deterrence

142. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

143. The penalty must reflect the need for specific deterrence. Topdeck is still conducting a business. Its operations involve the erection and dismantling of scaffolding and the continuing engagement of workers.

Aggravating Factors

144. There are no aggravating factors within the meaning of the CSP Act.

Mitigating Factors

145. Topdeck has no previous convictions: s 21A(3)(e) CSP Act.

146. Topdeck is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Topdeck has been in business for 30 years.

147. Topdeck is unlikely to re-offend: s 21A(3)(g) CSP Act.

148. Topdeck has good prospects of rehabilitation: s 21A(3)(h) CSP Act. 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.

149. Topdeck has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the risk was caused by its actions.

150. Topdeck entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Topdeck a 25% discount for an early plea.

151. Topdeck gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

152. 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.

153. 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.”

154. I take into account that the defendant is a small family-owned company. It is a business of modest size which makes a modest profit. I also take into account that the company has prudently set aside $100,000 towards the fine which will be imposed. I note that Topdeck has no bank borrowings and that it expects to make a profit in this financial year. Having regard to those matters, and to the size of the fine which I propose to impose, there will be no reduction in penalty because of capacity to pay.

Costs

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

Penalty

156. My orders are:

1. Topdeck Scaffolding Pty Limited is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Topdeck Scaffolding Pty Limited to pay a fine of $150,000.

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

5. Order Topdeck Scaffolding Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 14 June 2024