SafeWork NSW v United Roof Tiling Pty Ltd

[2017] NSWDC 14

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v United Roof Tiling Pty Ltd [2017] NSWDC 14
Hearing dates:	06 February 2017
Decision date:	14 February 2017
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	The defendant is convicted and fined the sum of $120,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs in the sum of $19,000.
Catchwords:	CRIME – WORK HEALTH AND SAFETY – roof tiler employed by the defendant – worker fell two storeys to the ground and sustained serious injury – other workers fell without sustaining injury – awning not properly supported – no safety rails, harnesses or nets – defendant had SWMS but did not follow it – risk identified by defendant’s director shortly before incident – general and specific deterrence – plea of guilty delayed – parity of sentence inapplicable as to other person charged – s 10 inappropriate as offence not trivial with potential fatal consequences and several persons at risk and defendant’s director aware of the risk, left worksite without risk being addressed – whether costs payable by defendant to prosecutor may be taken into account - discount of 20%
Legislation Cited:	Work Health and Safety Act 2011 – Crimes (Sentencing Procedure) Act 1999 – Fines Act 1996 – Work Health and Safety Regulation 2011
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor); United Roof Tiling Pty Ltd (Defendant)
Representation:	Counsel: Mr P Gow appeared for the Prosecutor; Mr I Latham appeared for the Defendant     Solicitors: SafeWork NSW Legal Services for the prosecutor; Lawpoint for the defendant
File Number(s):	2016/144467

Judgment

The charge and plea

1. United Roof Tiling Pty Ltd is charged with a breach of s 32 of the Work Health and Safety Act 2011 in that on 14 May 2014 at 5 Jean St, Greenacre, it failed to comply with a duty under s 19(1). The defendant has pleaded guilty.

The evidence

2. The prosecutor tendered a bundle of documents (Exhibit PX 1). The defendant relied on an affidavit of George Zeidan sworn 2 February 2017.

The facts

3. United conducted a business or undertaking involving the supply and installation of roof tiles to the construction industry. On the occasion in question, work was being conducted at 5 and 5A Jean St, Greenacre. A residential duplex was being constructed.

4. Mohmaad Yassine was the owner/builder of the site. He engaged his brother, Wahad, as the site manager. Wahad Yassine attended the site daily.

5. The defendant was contracted by Mohmaad Yassine to supply, lay and fix concrete roof tiles at the site. Barry El-Ters was one of the tilers employed by the defendant. His duties included laying roof tiles and supervising other workers.

6. George Zeidan was the sole director of United. He was a qualified tiler, but his role was supervisory and managerial. He organised work, quoted and ordered materials. He was the controlling mind of the defendant company.

7. The duplex under construction consisted of two storeys made of brick. About a week before the incident, carpenters built the wooden roof frame which was constructed on the second storey brickwork. Part of the roof structure included an awning over a balcony at the front of the duplex. As the brick columns at the front of the balcony had not then been constructed, the carpenters used temporary wooden props to support the newly built wooden awning frame at the front. Those wooden props were adequate to support the weight of the awning’s timber frame but not the added weight of roof tilers and roof tiles.

8. The duplex was surrounded by scaffolding except for the section immediately adjacent to the first floor balcony as the owner/builder used that section as a loading zone. The scaffolder had been instructed by Mr Wahad Yassine, the site manager, to install the scaffold with the exception of that area due to deliveries needing to be made there. The first floor balcony was also used as an area in which materials could be lifted to the first floor.

9. When Mr Zeidan arrived on site to quote for the tiling job the temporary timber props were still in place. Mr Zeidan requested that two additional props be fitted by Mr Wahad Yassine before the tiling job started. Mr Wahad Yassine fitted one steel acrow prop as additional support for the awning but a second acrow prop was not installed as materials were in the way.

10. About 7.00am on 14 May 2014, Mr El-Ters arrived at the site with other United tilers ready to start the tiling job. Also present was Mr Zeidan. Mr Zeidan spoke to Wahad Yassine about the lack of roof propping under the awning. Tiling of the roof commenced and Mr Zeidan left the site about 8.30am leaving the workers to do the job.

11. About 2.30pm after the awning had been tiled, Mr El-Ters and other workers were standing on it. It was about 7 metres above the ground.

12. As Mr El-Ters stood on the ‘starter’ (the first tile nearest the gutter) doing some pointing work, the roof gave way from under him and he fell two storeys to the ground. The two other workers also fell, but they landed on the first floor balcony and were uninjured.

13. Mr El-Ters sustained fractures to the left radial head, a fracture of the radial neck and multiple closed fractures of the pelvis with disruption of the pelvic circle. He spent eight weeks in St George Hospital with post-surgery complications involving a six week infection after replacement of the left radial head. He underwent surgery twice, once on 20 May 2014 and then on 5 June 2014 in an effort to manage the infection at the original surgical site.

14. Mr El-Ters has not returned to work.

15. The scaffold provided on site was incomplete in various areas and was not compliant to AS/NZS 4576 and AS/NZS 1576.

16. There was no other fall protection provided on the second storey balcony or on the roof, including roof rails, harnesses or netting.

17. United had a Safe Work Method Statement (SWMS) for laying roof tiles and associated works, which addressed falls from heights including ensuring that ladders were complete and undamaged, where roof trusses were greater than 600mm fall protection in the form of netting or other means must be used, that harnesses should be worn at all times and properly anchored, and safety roof rails must be installed if scaffold is not provided. United did not follow its own SWMS on the relevant occasion.

18. Clauses 78 and 79 of the Work Health and Safety Regulation 2011 applied to this situation. They required, in effect, the provision of a fall prevention device or a work positioning system or a fall arrest system. The Standards AS/NZS 4576 and 1576 also applied. They are scaffolding standards and the scaffolding did not comply with them.

19. SafeWork Australia had published a relevant code of practice “Preventing Falls in Housing Construction”. It provided instruction and guidance on managing the risk of falls including fall prevention devices, work positioning systems and fall arrest systems.

The sentencing process

20. I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

21. I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.

22. Foreseeability in this case was plain and needs no explanation. Persons working on roofs and construction sites are at risk of falling without proper protection.

23. Foreseeability of injury, including serious injury, from fall was plainly foreseeable.

24. Measures were readily available to eliminate the risk in this case.

25. Paragraph 7 of the Amended Summons sets out the measures the prosecutor relies on in this case. They include:

• failing to ensure safety roof rails;

• failing to have safety harnesses or safety nets in place;

• failing to have the awning properly supported;

• ensuring that the scaffolding was certified as compliant with the Standards.

26. These measures, or many of them, were in fact addressed in United’s own SWMS. Support of the awning was addressed by Mr Zeidan at the site before the incident. In the circumstances, the breach is a serious one.

27. General deterrence needs to be considered and allowed for in the penalty. Falls on construction sites are all too common such that it might be wondered if the message is not getting through to those offending in the industry. To ensure the message does get through, an appropriate component for general deterrence must be factored in. Those operating in the industry must understand that safety is paramount and failure to comply with safety requirements will have consequences.

28. Specific deterrence must also be factored in in this case. This must be so where the defendant had its own SWMS, but did not comply with it. Further, it did not comply with it in circumstances where Mr Zeidan specifically addressed the question of roof support on the morning of the incident and then left the worksite allowing work to proceed when the problem had not been fixed and precautions had not been put in place. Mr Zeidan said he was unaware the problem had not been fixed when he left the site – affidavit [19]. That is a strange omission where he had addressed the very problem that morning.

29. The injuries to Mr El-Ters were substantial and that is an aggravating factor – Crimes (SentencingProcedure) Act, s 21A(2)(g).

30. The offence also included a grave risk of death and that also is an aggravating factor – s 21A(2)(ib).

31. There is a number of factors to be taken into account on behalf of the defendant. The defendant has no prior conviction and has been operating in the industry since 2004.

32. Mr Zeidan has expressed his sorrow and remorse for the injury to Mr El-Ters. Supporting the genuineness of this are efforts made by the defendant to assist Mr El-Ters since the injury. These efforts include providing him with a motor vehicle, finance and other forms of assistance.

33. The defendant has pleaded guilty.

34. The summons was returnable on 20 June 2016 and listed for several mentions after that. The plea was entered on the 7th occasion the matter was listed before the Court. The prosecutor acknowledges the defendant is entitled to a discount in respect of the plea, but submits it should not be at the maximum rate because the plea could have been entered earlier and its utilitarian value enhanced accordingly. The discount for a plea of guilty is designed to reflect its utilitarian value. On the face of it, a plea delayed is a plea that has not maximised utilitarian value. In this case, a number of Court listings occurred before the plea was entered. Mr Latham, who appeared for the defendant, submitted that did not diminish the plea’s utilitarian value because, in this case, the defendant is to pay the prosecutor’s costs including the cost of those Court listings. I do not think that is to the point. The point is that utilitarian value is lost by reason of the fact alone that the Court’s time and resources and the prosecutor’s time and resources were utilised on the case before the plea was entered. This was time and resources that could have been otherwise utilised. The loss is not great. I think a discount of 20% is appropriate.

35. The defendant has co-operated with SafeWork in investigations and in the prosecution.

36. The defendant led financial evidence seeking to call in aid the benefit of the Fines Act 1996. This evidence is not satisfactory. It is not up to date in that the company’s financial statements are provided up to 30 June 2015 and no further. I do not think it is satisfactory for Mr Zeidan simply to say that the returns for 2016 have not yet been lodged, but that he does not expect the income will be any higher. For the relief sought more updated information should have been available. Further, the only document Mr Zeidan supplied in respect of his own earnings was a Notice of Assessment for the year ended 30 June 2015. Further, Mr Zeidan set out a number of financial losses in approximate figures without providing source documents to support those figures.

37. The financial records show turnover between about $3.5 million and $6 million per annum. Accordingly, the defendant is not in the lowest category of small operators. However, I take it to be a relatively small operator.

38. The defendant had a “parity” submission. It was that the greater responsibility for the incident lay with the owner/builder. That submission may be open to doubt, but for the purpose of the discussion it may be accepted as correct. The submission goes nowhere. This is because there is nothing to compare for the purpose of assessing penalty. Parity can hardly apply where, as here, there is only one entity to be sentenced.

39. The defendant’s ultimate submission in relation to penalty sought an order under s 10 dismissing the charge. I do not think this submission should be accepted. There was nothing trivial about the nature of this offence. It was an offence that had potential fatal consequences and it was an offence where several people were exposed to risk. Nor do I think there were any extenuating circumstances in relation to this offence – s 10(3). Indeed, Mr Zeidan saw the risk, he requested that it be addressed, he later saw it had not been addressed, he requested again that it be addressed and, with that background, without waiting to see that the risk was addressed, he left the worksite when it was not. On top of that, the defendant did nothing about providing any safety protection for its workers. There were, for example, no safety rails, no safety harnesses and no safety nets. For these reasons, an order under s 10 is not appropriate. For the same reasons, a fine at the lowest end of the range is not appropriate.

40. It has been agreed that the defendant will pay the prosecutor’s costs in the sum of $19,000. The defendant seeks that this be taken into account. It remains a vexed question as to whether costs payable by the defendant to the prosecutor may be taken into account. I have expressed the view in earlier cases that they may. I think in this case they may be taken into account but only in quite a minor way.

41. I bear in mind the maximum penalty in this case is $1,500,000. I note, however, that the maximum can be applied only in the most extreme of cases.

42. I think the appropriate penalty in this case without discount is the sum of $150,000. With a 20% discount, the appropriate fine will be $120,000.

ORDERS

43. The defendant is convicted and fined the sum of $120,000 with a moiety to the prosecutor.

44. The defendant is to pay the prosecutor’s costs in the sum of $19,000.

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Decision last updated: 14 February 2017