By Dr Laura Sowden, Partner, and Annabel Cheung, Lawyer

A worker on a construction site fell over six metres through an inadequately protected penetration in the roof.

On 8 February 2023, Russell SC DCJ ordered that a defendant be fined $400,000 for failure to comply with their work health and safety duty by exposing the worker to a risk of death or serious injury.

The case demonstrates the risks for Defendants even when pleading guilty at an early stage to an offence.

What happened

In October 2019, Quasar Constructions (Commercial) Pty Ltd engaged the defendant Parrish Group NSW Pty Ltd to install a metal roof and associated cladding on a construction site in Kembla Grange.

The defendant engaged a subcontractor, Modern Roofing & Facades Pty Ltd, to complete the labour component of the roofing works. Modern Roofing & Facades was required to adhere to the defendant work health and safety policies and procedures. Modern Roofing & Facades engaged a number of workers to complete the roofing work at the site, including Mr Brandon Boon.

There was a change in method of installing box gutters on the roof on the day of the incident initiated by Modern Roofing & Facades which meant that the workers left gaps in the places where sumps were to be installed. This method of work was quicker, but it required workers to work in proximity to the hazard of an inadequately supported area of the roof, being the inadequately protected holes where sumps were to be installed.

A junior employee of the defendant was aware of changed method of work, but neither the defendant’s management not Quasar were aware of the change.  Nevertheless, it was admitted in the guilty plea that the defendant did not undertake a risk assessment in respect of the changed method of work.

On 31 March 2021, Mr Boon, fell 6.8 metres through inadequately supported areas of the roof. Mr Boon suffered serious injuries including a right foot fracture and dislocation, a left shoulder dislocation and an L5 vertebral compression fracture.

Guilty plea entered

The defendant 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), to ensure where reasonably practical, that the health and safety of workers while at work in the undertaking.

The meaning of worker under s 7(1) of the Act provides that a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking including work as an employee, contractor or subcontractor and an employee of a contractor or subcontractor.

The plea meant that the defendant accepted it had failed to comply with that duty and thereby exposed Mr Boon to a risk of death or serious injury contrary to s 32 of the Act.

Sentence imposed

Given the defendant’s guilty plea, the court had to consider the objective seriousness of the offense in determining sentencing alongside relevant aggravating and mitigating factors.

The main benefits for defendants in pleading guilty including:

• There is a discount in the penalty imposed at sentencing
• Lower legal costs

The main disadvantages are:

• Certainty of conviction for an offence
• Potentially less judicial focus on the detail of what occurred on the day
• The matter is finalised more quickly

Seriousness of the offence

Russell SC DCJ determined that the defendant’s level of culpability was in the mid-range. His Honour’s determination was based on the following:

• The risk of a fall was foreseeable and known to the defendant
• The likelihood of the risk occurring was significant
• The potential consequences of the risk are obvious – death or serious injury
• There were steps available to eliminate or minimise the risk
• There was little or no burden or inconvenience of taking the requisite steps and no evidence of cost in doing so
• The injuries caused to Mr Boon were significant
• The maximum penalty for the offence was a fine of $1,500,000 which is reflective of the legislature’s view of the seriousness of the offence
• Safety duties cannot be delegated
  • MRF also had a duty to comply with the Act. Although it did make a significant contribution to the creation of the risk, the Act provides that safety duties cannot be delegated (s 14).
  • Further, each individual duty holder must discharge its duty to ensure safety (s 16) which the defendant failed to do so.

Russell SC DCJ noted that the penalty imposed must provide for general deterrence. His Honour was concerned by the rising number of cases from recent years that involved falls from roofs leading to death or serious injury. This was to the disadvantage of the defendant.

Aggravating factors

It was determined that pursuant to the Crimes (Sentencing Procedure) Act 1999 (Crimes Sentencing Act) the injury, emotional harm, loss, or damage caused by the defendant’s failure to comply with their work health and safety duty was substantial. It was noted that the defendant had a record of a previous conviction of another worker falling from a roof. Again, this was to the disadvantage of the defendant.

Mitigating factors

The Court considered several mitigating factors under the Crimes Sentencing Act. It was determined that the defendant was otherwise of good character as it took positive steps to guard against the risk of such an incident happening again.

The defendant is unlikely to reoffend and has shown good prospect of rehabilitation. It was determined that the defendant showed remorse for the offence as it accepted responsibility for its actions and acknowledged that its actions caused injury to Mr Boon. Other considerations included the defendant’s early guilty plea and its assistance and cooperation with law enforcement authorities.

The Decision

The defendant was convicted and ordered to pay a fine of $400,000, however, the fine was reduced by 25% to reflect the early plea of guilty.

The defendant was ordered to pay:

1. A fine of $300,000 and pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was to be paid to the prosecutor; and
2. The prosecutor’s costs amounting to $37,500.

Russell SC DCJ further ordered that SafeWork NSW send a copy of his judgement to the Minister with responsibility for workplace safety, who holds office in the next government.

Implications

Businesses in high-risk industries, such as contractors in the roofing and general construction industry should develop and have up to date documentation regarding safe methods of work on their sites.

Oversight and control of subcontractors engaged is a key risk area, as responsibility for the actions of those subcontractor’s actions spreads beyond the subcontractor.

Every safety incident can come back to each PCBU. It is critical to provide information, instruction, and training to workers on the safe methods to be implemented.

Further, it is important to undertake thorough inspections and worker management to identify any arising hazards and to provide adequate controls to manage the risk.

When faced with an incident, seek early advice and once prosecuted very closely examine the benefits of any guilty plea.

Decision – SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13