Edgesafe Pty Ltd (Edgesafe) has pleaded guilty to an offence that being a person who installed plant or structure that is to be used at a workplace and having a health and safety duty pursuant to section 26(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Jason Sexton to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $1.5 million.
Christopher Michael Butler has pleaded guilty to an offence that as an officer of Edgesafe who had a health and safety duty under section 27(1) of the Act, he failed to comply with that duty and thereby exposed Jason Sexton to a risk of death or serious injury contrary to section 32 of the Act. The maximum penalty for the offence is a fine of $300,000.
[2]
Facts
The parties presented 2 Agreed Statement of Facts that can be summarised as follows.
Edgesafe conducted a business supplying and installing edge protection and fall prevention systems to clients in the building industry. Mr Butler was the sole director of Edgesafe and worked in its day to day operations, including in matters related to work health and safety.
Edgesafe was engaged by RO Steel Pty Ltd (RO Steel) to install a temporary edge protection system along the edges of a roof of a building known as "Unit 2" at 169 Bonds Road, Riverwood (the premises).
The premises were owned by Santos Foods (Santos). Santos had engaged RO Steel to remove an old asbestos roof and wall sheeting on Unit 2 and replace it with new metal sheeting.
Mr Sexton was a sole trader engaged by RO Steel to work at the premises. He was a roofer with 22 years' experience in the industry.
Edgesafe installed the temporary edge protection on 5 and 6 January 2015. At the time Mr Butler was on annual leave and Robert Johnson was the experienced on-site supervisor of Edgesafe.
The guardrail fencing was installed by attaching steel mounting plates to existing metal purlins with 3 or 4 self-drilling and tapping screws (the 500 Tek screws). The method used is known as a 'fascia fix'. Mr Butler and Mr Steel of RO Steel had agreed, based on RO Steel's order of work that the fascia fix method was appropriate.
The mounting plates used by Edgesafe were 8mm thick and each had 4 pre-drilled holes. The larger holes were used for fixing them to concrete, and could not be used to attach them to metal purlins.
The installers drilled the 500 Tek screws through a number of the metal plates that did not have smaller pre-drilled holes in them. The 500 Tek screws were fit for this purpose.
At about 5.30am on 8 January 2015 Mr Sexton arrived at the premises to work. He was told by a representative RO Steel that the temporary edge protection was in place and that it was safe to work.
At about 7.00am Mr Sexton started work on the roof. He placed his hand on the railing adjacent to Bay 3 and the guard railing separated from the purlin causing him to fall 5m to the ground. Approximately 26 sections of the guard railing fell away from the side of the building and 13 sections stayed in place. The guard railing that fell to the ground was largely intact.
An ambulance was called and Mr Sexton was taken to hospital. He suffered fractures in his neck at C1 and C2 his back at L5, bilateral wrist fractures, a tear to his bowel and a laceration to his spleen. He has been unable to return to his pre injury employment.
Edgesafe had a Safe Work Method Statement (SWMS) for the work. It required the fixing of the mounting plate with a minimum of 3,500 Tek screws. The SWMS was written by Mr Butler and to be implemented on site by Mr Johnson.
After the incident it was determined, by expert analysis that the 500 Tek screws that were screwed through the metal plates were blunted, such that they did not sufficiently engage with the metal purlins.
The side that fell was installed by an employee of Edgesafe, Mr Waters. The other side was installed by Mr Johnson. Mr Johnson and Mr Waters were assisted by a labourer, Mr Mathers. Mr Johnson supposedly checked the installation before leaving the premises on 6 January 2015 by applying outward horizontal force to the uprights, to ensure that the amount of lateral movement did not exceed 150mm.
Prior to the incident, Mr Butler had trained the Edgesafe workers as to the method of installation and the method of testing. The training provided was on the job training. No detailed on-site training was provided at the premises because Mr Johnson and Mr Waters were both experienced workers in the industry. The SWMS required Mr Johnson to take the workers through it before commencing work at the premises. There was no set content as to on-site training and no specific instructions as to installation.
The Australian Standard AS/NZ 4994:2009 Temporary Edge Protection (the Standard) required the edge protection system to be able to withstand a person falling against it and required that the edge protection system could not become detached to allow a person to fall from the roof. The Standard also requires that the edge protection system be inspected before handover to ensure it is correctly installed. This inspection should confirm that the connection of the system to the structure is secure and that the connections between the parts of the system are secure. The Standard requires the delivery of a handover certificate after the inspection, to confirm that the inspection in accordance with the Standard has been carried out.
The fascia fix system was not the subject of any specific testing by Edgesafe or a person engaged by it to ensure that it complied with the Standard. Edgesafe relied on the stated technical capacity of the 500 Tek screws.
Mr Johnson did not provide a handover certificate to RO Steel when the work was complete. There was no other documented check of the edge protection system installed at the premises.
The 2012 Code of Practice, Managing the Risk of Falls at Workplaces, required that edge protection systems be checked before use to ensure that it would handle potential loads, including that of a person falling against it. The 2009 Code of Practice, Safe Work on Roofs Part 1, stated that edge protection systems should only be erected by competent persons and that before work commences on a roof that it should be confirmed that the supporting members can support the load of a person falling against the rails.
Following the incident, Edgesafe no longer relies solely on screw fixings to purlins other than in certain circumstances. Additional supports to the ground or wall are used, in preference to fascia fix.
[3]
The Offender's Case on Sentence
The offenders relied on an affidavit of Christopher Michael Butler sworn 28 February 2018. Mr Butler was cross-examined. The content of his evidence can be summarised as follows.
Mr Butler is the sole director and shareholder of Edgesafe. It was incorporated on 16 October 2008 and commenced to trade on about 1 April 2009.
Edgesafe supplies and installs temporary edge protection systems for clients in the building industry as well as hiring the components of those systems to clients for self-installation. Mr Butler has worked in the roofing industry since 1998 and in edge protection systems since 2002.
Between May 2007 and 2009 Mr Butler was the Commercial Sales Manager for CSR's guardrail business, Top Cat Safety Rail (Top Cat). During that time Top Cat had 15 full time employees. He set up Edgesafe to take over Top Cat's business in NSW and Qld, when CSR decided to close down that business. The clients were large scale operations, many of whom have been retained by Edgesafe to date.
During the period of Edgesafe's operation it has installed a large number of temporary edge protection systems without incident. Each installation is designed around a number of variables, including the order of works at the site.
Mr Johnson had been employed by Edgesafe for 6 years. Mr Waters had considerable experience as a roofer before coming to work for Edgesafe in October 2014. Both men worked on this installation from Elevated Work Platforms (EWP) supplied by the principal contractor, and each were licenced to do so. They should have received a site induction from the principal contractor and it was expected that Mr Johnson would conduct a tool box talk to discuss any unusual requirements of the job. The particular job had been planned by Mr Butler and discussed with Mr Johnson, before Mr Butler went on leave.
On 19 December 2014 Mr Butler went to the premises and met Mr Steel. They discussed the requirements of the building work and the fascia fix method was formulated. Mr Butler drew a mud map of the edge protection system and the dimensions of its component parts. The mud map was provided to Mr Johnson together with a hand written list of the required components.
Following the incident, Mr Butler has formulated an Excel spreadsheet for jobs.
From Mr Butler's inspection of the premises on 19 December 2014, which was limited by the presence of asbestos box guttering obscuring the purlin, he estimated the purlin to be 2-2.4mm thick.
Mr Butler had worked previously with Mr Steel and had used the fascia fix method on an earlier job. Edgesafe had also used the fascia fix method on many other jobs previously.
The 500 Tek screws were purchased in bulk by Edgesafe and kept in its stores. Mr Butler believed at all times prior to the incident that they were fit for purpose. Mr Butler was not aware from the industry of any previous failure of the 500 Tek screws. After the incident, Mr Butler has conducted a number of experiments on a 'test rig' at Edgesafe's premises and has been unable to replicate the failure of the 500 Tek screws. The experiments were overseen by an independent testing and inspection company, Synchronised Testing and Inspection (Synchronised).
Following the incident, Edgesafe no longer uses the fascia fix method, other than in circumstances where the purlin is boxed or it is a steel beam. It has used the fasica fix method on a job at Dubbo where the attachments could be made close to the joins in the purlin, where there was added structural support.
Mr Butler trained the workers on the requirements of the Standard, and in particular the need for inspection of the completed system. Each of them was aware of the acceptable deflection in the posts. Mr Johnson assured Mr Butler in his discussions with him after the incident, that Mr Johnson had tested the system and that it had 'passed'.
The required test involved pulling the post towards the EWP and noting the extent of any deflection. This was to be done for each individual upright before the cross-rails were put in place and again after the cross-rails had been installed.
Mr Butler is not aware of any other concern about a system installed by Edgesafe after the incident.
There has been some staff turnover since the incident and Mr Butler continues to train the staff on the requirements of the Standard and the installation of edge protection. Mr Butler tends to be the working supervisor on site now. As a result of financial pressures on the business and some personal difficulties suffered by Mr Butler, he is working 12 to 14 hours per day to complete his duties for Edgesafe.
Edgesafe revised its SWMS in October 2016.
Mr Butler acknowledged that something went wrong with the installation at the premises and that Mr Sexton was seriously injured as a result. Mr Butler expressed remorse on behalf of himself and Edgesafe for the injury to Mr Sexton and the effects on his family. He described the incident as antithetical to the business operated by Edgesafe.
In October 2017 Mr Butler's marriage broke down. He is separated and the matrimonial home was sold. The mortgage and Edgesafe's debts were paid out of the proceeds of sale. His wife and 2 young children now reside on the North Coast of New South Wales and he resides with his mother to allow him to continue to operate the business.
The relationship broke down in part as a result of financial strain on the family. Mr Butler has been suffering from depression. He has been prescribed anti-depressants and has been referred for counselling with a psychologist pursuant to a Mental Health Treatment Plan.
Edgesafe's financial position is precarious. Mr Butler is dependent on Edgesafe to make a living. Mr Butler currently has no assets apart from a share portfolio worth about $10,000 and some superannuation. He has borrowed funds from his mother and is presently unable to repay her.
Mr Butler produced a number of bank statements in response to a request from the prosecution. He gave evidence in cross-examination that he has no remaining funds from the sale of the matrimonial home. Edgesafe owns a number of vehicles, tools and components of the edge protection systems. Edgesafe is currently owed about $75,000 for work it has done. Mr Butler wants to continue with Edgesafe if it is possible to do so. He believes that he has built a good reputation in the industry and that any goodwill in the business would be lost if he had to wind up the company. He has applied for short term finance, but those applications have been refused. He does not have any collateral to offer to take out a loan. His mother cannot assist him further. The funds he had have been spent on legal fees for this matter.
In re-examination Mr Butler gave evidence that Mr Johnson had the handover certificate available to him at the premises at the completion of the work. Mr Johnson was in charge and knew what to do. Mr Butler never had any concerns about his capacity to do the work before the incident and he had not received any complaint about Mr Johnson failing to provide a handover certificate. He first became aware that the handover certificate had not been provided after the incident when Mr Steel rang him demanding it. Mr Johnson was later terminated for anomalies with the use of a company credit card and for dishonesty relating to an application for leave.
[4]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
The offences are both objectively serious.
The risk posed by the ineffective installation of the edge protection system was obvious. The offenders knew that it was likely that workers going onto the roof of the premises would rely on the edge protection system to prevent an accidental fall.
I accept that the failure of the 500 Tek screws was not something that was readily foreseeable. However, the proper testing of the installation of the uprights would have revealed the problem. It is clear that Mr Johnson did not properly test the system in the large area where the 500 Tek screws came away from the purlin. The offender should have had in place a system for testing the deflection of the uprights that was documented and counter checked by another employee.
The measures required to eliminate or minimise the risk were simple and readily available at little cost. These included the pre-drilling of the holes in the mounting plates and the implementation of a written system of instruction as to the installation and inspection of the system.
The risk was one of serious injury and death.
Mr Sexton suffered serious injuries that have had permanent impact on his amenity of life.
There is a large degree of overlap between the offences. The same particulars of breach of duty are pleaded against Mr Butler.
[6]
Deterrence
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 Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence because the offender continues to operate in an industry that presents significant risks to the health and safety of its employees and other persons. The need for specific deterrence is reduced to some extent by reason of the adverse effects the offences have had on Mr Butler and his demonstrated commitment to providing a safer approach.
[7]
Aggravating factors
The injury harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The injuries sustained by Mr Sexton were serious. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.
[8]
Mitigating factors
The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Edgesafe has been in operation since 2009 and Mr Butler is 48 years of age.
The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the evidence that Mr Butler has taken steps to improve the systems used on by Edgesafe and has adopted personal responsibility for supervision of its workers. The evidence demonstrates that the offenders have good prospects of rehabilitation.
The offenders has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders expressed remorse through the affidavit Mr Butler. I am satisfied on the balance of probabilities that the offenders have accepted responsibility for their actions and have expressed genuine remorse and contrition.
The offenders entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The pleas were late coming only on the first day of a listed trial. The appropriate discount is 10%.
The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
I have taken into account the personal toll that the incident has had on Mr Butler. I accept that he has suffered psychological symptoms as a result of the incident and that they have an adverse effect on his health and relationships.
[9]
Capacity to pay a fine
The Court is required to have regard to section 6 Fines Act 1996 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: Jahandideh v R [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.
Edgesafe is the corporate vehicle for the business of Mr Butler and to a large extent his earning capacity is reflected in the company's fortunes. Mr Butler is separated and supporting 2 young children. Edgesafe has some assets but they are not liquid and they are required for the profitability of the business. The accounts do not indicate large sums of money being available to Edgesafe or Mr Butler. Whilst there are significant gaps in the evidence presented by the offenders, I am satisfied that Edgesafe and Mr Butler have established that they have a limited capacity to pay a fine.
I have also taken into account that the offenders will be ordered to pay the prosecution's costs of the proceedings that are likely to be substantial because the matter was listed for hearing and it involved expert evidence: Environmental Protection Agency v Barnes [2006] NSWCCA 246 at [78].
[10]
Penalty - Edgesafe
Edgesafe Pty Ltd is convicted.
The appropriate starting point for a fine is one of $250,000 less a discount of 10% to take into account the plea of guilty. I will exercise my discretion to reduce the fine to some extent based on the Edgesafe's limited capacity to pay.
I impose a fine of $75,000.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that Edgesafe pay the prosecutors costs as agreed or assessed.
[11]
Penalty - Mr Butler
Christopher Michael Butler is convicted.
The appropriate starting point for a fine is one of $30,000 less a discount of 10% to take into account the plea of guilty. I will exercise my discretion to reduce the fine to some extent based on the Mr Butler's limited capacity to pay.
I impose a fine of $5,500.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that Mr Butler pay the prosecutors costs as agreed or assessed.
[12]
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Decision last updated: 26 March 2018