SafeWork NSW v Bermagui Constructions Pty Ltd

The Injured Worker

1. On 27 January 2021, Mr Spillane commenced employment with HLH as a labour hire worker. That same day, Mr Spillane was assigned to work with Harbour City Roofing at Hurstville Aquatic Centre. Mr Spillane began working at ground level, assisting Harbour City Roofing workers Mr Blake Tasker and Mr Adam Simonovski to perform internal roof works from an Elevated Work Platform (EWP) by passing materials and tools to them.
2. Mr Spillane had no experience or formal training in relation to work at heights, although he had worked in the construction industry as a labourer for some time.

The Incident on 9 February 2021

1. On 9 February 2021, Mr Spillane was working on the ground level at the site cutting wire and plastic to size.
2. Mr Tasker states that he spoke to Mr Darren Schultz, a Bermagui supervisor, about the work that could be completed without an EWP. According to Mr Tasker, Mr Schultz took him onto the external roof and showed him some defect-related work that would need to be completed.
3. Mr Schultz states that he had taken Mr Tasker onto the roof to show him the scope of works for the entire project, which included "Stage 1" and "Stage 2" works. Stage 2 works had not yet begun.
4. Mr Tasker decided to perform works on the external section of roof. The work involved being physically on the roof to replace roof sheets.
5. No risk assessment had been conducted in relation to performing this task.
6. Mr Tasker asked Mr Spillane to assist him with this work. Mr Spillane began bringing materials onto the roof and assisting with removing metal sheets from the roof.
7. There was no edge protection or other fall prevention measure in place in the relevant area of the roof. Mr Spillane was not using a work positioning or fall arrest system.
8. Mr Blaine Sheridan, a general assistant to the project manager for Bermagui (who was involved in the delivery of safety inductions), states that he saw Mr Tasker and Mr Spillane working on the roof between 8.00am and 9.00am. Subsequently, Mr Blaine Sheridan states that he informed Mr Tasker that workers should not be on the roof without a harness.
9. Mr Blaine Sheridan did not inform Mr Tasker or Mr Spillane that no work should be performed on the relevant area of the roof.
10. Mr Tasker and Mr Spillane continued to work on the roof in the same manner, without any fall prevention measures, work positioning system, or fall arrest system in place.
11. At approximately 9.00am on 9 February 2021, Mr Spillane fell through a roof soffit and landed on the concrete approximately five meters below.

Mr Spillane's Injuries

1. As a result of the incident, Mr Spillane suffered traumatic injuries including a dislocated elbow and left and right wrist fractures that required surgery. He spent three weeks in hospital.

Legal Obligations and Guidance Material

1. Clause 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) provides that duty holders must manage the safety risks associated with a fall, including openings through which a person could fall.
2. Clause 79 of the WHS Regulation sets out the specific requirements to minimise the risk of a fall. Clause 79(3) provides a hierarchy of controls for providing adequate protection against the risk of a fall. A duty holder provides adequate protection against the risk of a fall if it maintains a safe system of work, including by: "(a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable."
3. A "fall prevention device" includes edge protection and covers: WHS Regulation cl 79(5).
4. The work carried out by Bermagui was "high risk construction work" within the meaning of cl 291 of the WHS Regulation. As such, Bermagui was required to prepare a Safe Work Method Statement (SWMS) for the work. The SWMS had to specify the hazard relating to the work, the risks to health and safety associated with those hazards, describe the measures to be implemented to control the risks, and describe how the control measures are to be implemented, monitored and reviewed: WHS Regulation cl 291(3).
5. Prior to the incident the SafeWork NSW (SafeWork) Code of Practice, Managing the Risk of Falls (August 2019) (the Code) was published. The Code was available to Bermagui before the incident and relevantly provided: 1. Key things to look for when undertaking inspections include holes and openings that will require guarding. 2. The WHS Regulation requires duty holders to work through the hierarchy of controls to choose the control that most effectively eliminates or minimises the risk in the circumstances. This may involve a single control measure or a combination of two or more different controls. 3. A fall prevention device (for example, a secure fence, edge protection, work platform or cover) must be used to provide and maintain a safe system of work where persons are working near or around holes, penetrations and openings through which a person could fall, if it is reasonably practicable to do so. 4. Edge protection should consist of guardrails, solid balustrades or other structural components. The top of the guardrail or component should be between 900mm and 1,100mm above the working surface. 5. Holes, penetrations and openings through which a person could fall should be made safe immediately after being formed. If a cover is used as a control measure for openings and holes, it must be made of a material strong enough to prevent persons or objects falling through and must be securely fixed to prevent dislodgment or accidental removal. The cover should also include signage indicating its purpose as a cover, for example, "danger, hole beneath". Covers over penetrations should be designed to safely withstand a point load of at least 200 kilograms. 6. Guardrails may be used to provide effective fall prevention around openings in floor and roof structures. 7. Fall arrest systems, such as individual fall arrest systems (including harnesses), are intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. These systems must only be used if it is not reasonably practicable to use a fall prevention device or work positioning system or if these higher-level controls might not be fully effective in preventing a fall on their own.
6. Prior to the incident, SafeWork published a factsheet titled "Falls - Safety Guide" (January 2016). The document was published online and was available to Bermagui. The factsheet emphasised the importance of planning work to eliminate or control the risk of a fall, including managing the risk by using equipment that will prevent a fall such as fixed covers over holes and penetrations.
7. Prior to the incident, Safe Work Australia had published the "Safe Work on Roofs Information Sheet" (January 2016) (Information Sheet). The Information Sheet was published and available to Bermagui. The Information Sheet relevantly provided: 1. Falls from height are the major cause of death and injury when working on roofs. 2. Hazards to consider in managing fall risks include unprotected edges, skylights, holes and vents, and trip hazards. 3. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls. 4. Workers such as electricians, plumbers, pest control operators, installers of roof aerials, solar panels and air-conditioning systems, can trip and fall on roofs, through roofs and openings or while accessing or exiting roof areas. 5. Falls from even low heights can leave workers with permanent and debilitating injuries such as fractures, spinal cord injuries, concussion and brain damage. The risk of serious injury or death from a fall increases significantly as working heights increase. 6. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls.

Systems of Work Prior to the Incident

1. Prior to the incident, Bermagui had a "Working from Heights Check List" and "Risk Assessment (form 4.1)" which identified falls through fragile or brittle roofs as a hazard.
2. Weekly site walks were undertaken by Mr Ben Sheridan and Mr Schultz.
3. A SWMS was prepared by Harbour City Roofing for the site.
4. Bermagui conducted briefings with subcontractors prior to the commencement of tasks, although these were not documented.
5. Bermagui carried out site inductions for workers however, the induction paperwork for Mr Spillane was not completed on the day of his induction.

Steps Taken After the Incident

1. After the incident, in response to improvement notices issued by SafeWork directly related to the risk, Bermagui did the following: 1. Installed a temporary handrail edge protection attached to the external roof area. 2. Installed a catch scaffold under the external roof area. 3. Installed a safety net inside the Hurstville Aquatic Centre building. 4. Reviewed its work health and safety (WHS) procedures. 5. Re-inducted personnel on site.

Affidavit of Ben Sheridan (DX 1)

1. Mr Ben Sheridan, director of Bermagui swore an affidavit on 20 November 2024. Mr Sheridan has been Bermagui's director since June 2007.
2. Mr Sheridan has experience as a general manager, construction manager, and project manager. Mr Sheridan has a Diploma of Project Management and an Associate Diploma of Building Science.
3. Mr Sheridan annexed to his affidavit an exhibit entitled "BS-01". Various documents referred to in his affidavit were behind tabs in BS-01.

Scope of Works

1. Mr Sheridan's affidavit listed the works included in Stage 1 of the project, which included various remedial repairs and replacements as required on the roof areas. Stage 2 of the scope of work was based on the remedial repairs and replacements identified in Stage 1 works and were set out in the tender between Bermagui and Georges River Council on 7 October 2020 (Tender).
2. On about 12 November 2020 the Tender was awarded to Bermagui. A copy of the Tender is in BS-01 Tab 2.
3. The Tender contained a provisional sum allocation for the Stage 2 works which did not form part of the Stage 1 works identified in the construction contract. These works had not yet been approved or paid for, had not yet commenced at the start of the project around 12 November 2020, and were located in zones that did not form part of the aquatic centre that formed part of the Stage 1 works. A copy of the construction methodology is in BS-01 Tab 3.
4. The Stage 2 works comprised 486 square metres of additional roof remediation which incorporated the area where the incident occurred.
5. Bermagui engaged Harbour City Roofing to perform the roof and ceiling work and to install safety rails as part of the Stage 1 works. On 9 December 2020, Harbour City Roofing commenced work on site after installing the roof safety rails.
6. On 14 December 2020, Harbour City Roofing provided Bermagui with a quote for the Stage 2 works. On 17 January 2021, Georges River Council approved Bermagui's quote for the Stage 2 works. Bermagui had not engaged Harbour City Roofing to commence the Stage 2 works, nor had it approved their quote for Stage 2 works.
7. From the commencement of construction on 12 November 2020 to 9 February 2021, Bermagui did not take any actions to activate the Stage 2 works.
8. On 11 March 2021 Harbour City Roofing provided a revised quote for Stage 2 works. The variation was approved on the basis that Harbour City Roofing engage Acute Building Services to support it in the completion of the works.

Subcontractors

1. In or around mid-November 2020, Mr Sheridan and Mr Schultz met with Mr Brook Baker, director of Harbour City Roofing, to discuss the scope of works, resourcing capacity and programme for the project and subcontract.
2. Mr Sheridan said that Mr Baker informed him that Harbour City Roofing owned and installed roof rail systems for edge protection and were qualified safety anchor point installers. The installation of roof rail systems and safety anchor points were included in Harbour City Roofing's works on the project.
3. Mr Sheridan said that Mr Baker assured him that all of Harbour City Roofing's personnel held the necessary certificates to perform the works, and that they had an established WHS system in place.
4. Mr Sheridan recalled considering various factors with respect to engaging Harbour City Roofing. These factors included Mr Sheridan's understanding that Harbour City Roofing had "the skill, experience, and operational procedures including work, health and safety and site supervision and coordination in place".
5. Harbour City Roofing was required to provide its SWMS and personnel records to Bermagui for review before commencing their works. In or around early December 2020 documentation evidencing the qualifications of Harbour City Roofing's personnel was provided, and Harbour City Roofing was required to perform site inductions with its employees before commencing their works. A copy of the "Sydney Safety Training" record for Harbour City Roofing dated 2 November 2020 is in BS-01 Tab 10.

Plant and Equipment

1. In or around November 2020, Bermagui had the following systems in place for the Stage 1 works: 1. Handrail system. 2. Elevated Work Platforms (EWPs). 3. Anchor point protection. 4. Harnesses (including spare harnesses). 5. Edge protection. 6. Stretcher stairs. 7. Access/egress point management system.
2. Bermagui arranged for its workers to participate in EWP training before commencing the project to obtain their "Elevated Working Platform" tickets. Bermagui's subcontractors were required to have the same qualification.
3. In around mid-December 2020, the handrails used for demolition were removed once the roof demolition work was completed. The handrails were replaced with new handrails suitable for the roofing works to be performed by Harbour City Roofing as part of their scope of the Stage 1 works.
4. Mr Sheridan said that Bermagui used its own safety systems for the Stage 1 works as well as other systems enacted by the subcontractors and Australian Access Hire.
5. Bermagui's subcontract with Harbour City Roofing required Harbour City Roofing to have appropriate safety systems in place for any works they were undertaking at the site.
6. Bermagui installed a scaffold stretcher staircase and walkway to facilitate a recovery in the event of an incident and to provide secure and efficient access to the roof works. Photographs of the stairs, walkway and site set up plan are at BS-01 Tab 13.

Site Supervision and Management

1. Bermagui engaged the following personnel to supervise all workers on site and to provide works on site: 1. Mr Schultz - site manager. 2. Mr Blaine Sheridan - leading hand. 3. Mr Ryan Sheridan - cadet engineer.
2. Mr Schultz, Mr Blaine Sheridan, and Mr Ryan Sheridan either collectively or individually conducted weekly site safety inspections and toolbox talks before commencing work.
3. Bermagui used a paper-based Site Safety Management Plan and induction process. This was later changed to a digital system. In or around June 2018, Bermagui's system was reviewed by Mr Kevin Collins of Construct Safe to confirm that the system adhered to the Code of Practice for Construction Work. A copy of the email from Mr Collins is at BS-01 Tab 14.
4. Mr Sheridan said that Bermagui is on the "Construct Safe" mailing list to receive communications relating to WHS updates, incidents and alerts. Mr Sheridan therefore said that "Bermagui was keeping up to date with all recent safety requirements and changes to these safety requirements".
5. Mr Sheridan said that before 9 February 2021 there were several issues with the site induction process which impacted Bermagui's ability to effectively manage the site. These issues included: 1. Harbour City Roofing using the site "as an interchange for people and materials relevant to neighbouring projects they were undertaking" and there was uncertainty about which workers were required to be on site. 2. Bermagui implemented the "Dash Pivot WHS Management" software but this hindered Bermagui's operations as Covid-19 safety behaviours prohibited the use of communal technology devices that were required to complete the induction and information collection process. Notwithstanding this, all site attendees, other than Mr Tasker and Mr Spillane were registered on the electronic system.

Prior to the Incident

1. Mr Sheridan said "with certainty" that Bermagui did not authorise Harbour City Roofing to proceed with the Stage 2 works before the incident.
2. Before the Christmas shutdown period, Mr Sheridan was "confident" about Harbour City Roofing's performance on the project. However, after the shutdown period Harbour City Roofing's workers did not show up at the site on several occasions. When the workers did show up, there were so few that they were not performing the Stage 1 works adequately. Consequently, Mr Sheridan attempted to engage "separate entities" to perform the Stage 2 works.
3. In or around January 2021, Mr Sheridan said that Harbour City Roofing ordered materials for the Stage 2 works without approval or consent from Bermagui. These materials arrived at the site in late January 2021.
4. Mr Schultz informed Mr Sheridan that on 28 January 2021 he observed Harbour City Roofing's site foreman commencing Stage 2 works using an EWP. Mr Schultz reported telling the foreman to "cease work immediately".

The Incident

1. On 9 February 2021 the EWPs were allocated to trades, including Harbour City Roofing. Mr Tasker and Mr Schultz then surveyed the site and the works that needed completing.
2. After Mr Schultz surveyed the site he and Mr Sheridan were preparing for a meeting. Mr Sheridan said that after that he recalls being told that Mr Spillane had fallen off the roof at "zone 9" while carrying out the Stage 2 works.

After the Incident

1. On 9 February 2021, Mr Sheridan said that he had a conversation with Mr Baker who said words to the effect of: "Spillane had been instructed not to carry out roof works. They know not to go up there".
2. Mr Sheridan was present when Mr Tasker said that he decided to work in zone 9 as he assessed the work as manageable by two people and could be finished within the day.
3. On 9 February 2021 SafeWork issued an Improvement Notice which prohibited Bermagui continuing Stage 1 works until SafeWork was satisfied that Stage 2 works had the necessary safety systems in place to eliminate the risk of a fall from height. To progress the Stage 1 works, Mr Sheridan said that Bermagui used a scaffold catch deck and handrails to comply with safe work requirements.
4. Following the incident, Bermagui re-inducted every worker on site using the original paper-based system. Copies of redacted paper-based induction and re-induction sheets were at BS-01 Tab 18.

Impact on the Business

1. Mr Sheridan said that before the incident Bermagui operated with an "impeccable safety record with no injuries on any of its projects since its inception 15 years ago".
2. Mr Sheridan said that Bermagui has focussed on keeping up to date with developments in WHS, applied the developments to each job, and communicated the importance of safety to all workers.
3. Mr Sheridan said that "without deflecting any responsibility of Bermagui", Harbour City Roofing was engaged based on their presentation as highly qualified roofers with a safety focus. Bermagui "continuously communicated" with Harbour City Roofing during the project and "clearly outlined" the scope of work that Harbour City Roofing was to perform.
4. The incident has had a "profound impact" on Bermagui's business and Mr Sheridan personally. Bermagui ceased operations shortly after completing the project.
5. Mr Sheridan reported the incident having a "substantial impact upon Bermagui's ability to procure work with its current client base" because it must complete a WHS questionnaire when tendering for projects which discloses the investigation by SafeWork.
6. In December 2021 Bermagui's remaining employees sought employment elsewhere as Bermagui did not have enough work as a result of the incident.
7. Copies of Bermagui's financial statements from financial years ending 2021 to 2024 is in BS-01 Tab 19.
8. Mr Sheridan outlined the changes he would make to Bermagui's systems if he could "go back to before" the incident. The changes include: 1. Implementing a "mandatory online pre-qualification questionnaire/registration/induction for all workers to complete and upload evidence of their qualifications and tickets and White Cards to avoid supervisors on site having to manage deficiencies of subcontractor's workers". 2. Ensuring that all subcontractors and their personnel are adhering to the systems already in place and ensure there is greater compliance and more discipline in following the existing system. 3. Prohibiting any day labour hire personnel being allowed to work on any of Bermagui's construction sites.

Apology

1. Mr Sheridan, as the sole director of Bermagui, apologised to Mr Spillane, the community and the Court for the offence. Mr Sheridan is ashamed that the incident occurred.
2. Mr Sheridan said that Bermagui is "an active member of the community and has endeavoured to provide support and assistance to its community over the years". Mr Sheridan's affidavit listed various charities and sporting groups that have received donations and fundraising from Bermagui.
3. After the incident Bermagui offered to assist Mr Spillane "in any way it could". Mr Sheridan annexed correspondence with Mr Baker offering support and inquiring about Mr Spillane's welfare at BS-01 Tabs 20 and 21.

Affidavit of Mr Schultz (DX 2)

1. Mr Schultz swore an affidavit on 20 November 2024. At the time of the incident he was Bermagui's site manager. Mr Schultz is now a sales director at a different company.
2. Mr Schultz said that on 26 November 2020 Bermagui requested that Harbour City Roofing provide its SWMS for the site. The SWMS was provided on or about the first week of December 2020. Harbour City Roofing's personnel were then induced at the site, during which they presented their certifications.
3. Mr Schultz said that he recalls inducting 11 Harbour City Roofing personnel when the work commenced.
4. Before 9 February 2021, Mr Schultz observed Harbour City Roofing's personnel carrying out their work in "a safe and diligent manner applying industry safe work procedures with no incidents".
5. On 11 January 2021 Harbour City Roofing personnel were expected to recommence work. However, workers did not attend or recommence work until 27 January 2021.
6. From 17 December 2020 until 9 February 2021 Mr Schultz noticed several issues with Harbour City Roofing's personnel, including: 1. Numerous changes to the on-site lead supervisor and project manager. 2. Lack of attendance of roofers at the site to perform the work.
7. Between 27 January 2021 and 9 February 2021 Mr Schultz said that he informed various Harbour City Roofing personnel about the areas that they should be prioritising and working on.

Induction of Mr Spillane

1. On 27 January 2021 Mr Schultz recalls inducting Mr Spillane to the site between 7.30am and 8.00am.
2. Mr Spillane arrived on site around 7.15am and advised Mr Schultz that "he was to work with the roofers". At that time there were no other Harbour City Roofing personnel on site.
3. Mr Schultz explained the usual process he followed when inducting workers. The process included confirming workers had a White Card and had signed their SWMS. Mr Spillane told Mr Schultz that he held a White Card and was waiting for the physical copy to be delivered. Mr Schultz agreed with Mr Spillane that they could complete the induction paperwork later once the other roofers arrived. Mr Schultz cannot recall whether Mr Spillane continued working at the site after his induction or whether he left to conduct work at another Harbour City Roofing site.
4. Before 9 February 2021 Mr Schultz observed Mr Spillane carrying out "low risk activities (general labour)" at the direction of Mr Tasker or Mr Simonovski, the Harbour City Roofing site foreman.

Induction of Mr Tasker

1. Mr Schultz recalled inducting Mr Tasker on 4 February 2021. During the induction process, Mr Schultz recalls Mr Tasker saying words to the effect of: "I do not have my White Card on me but it's in the car. I'll give it to you later."
2. Mr Schultz remembers reminding Mr Tasker twice on 4 February 2021 of the need to complete the induction record.

The Incident

1. On the day of the incident at approximately 7.40am Mr Tasker informed Mr Schultz that he was responsible for managing the roof works on behalf of Harbour City Roofing. Mr Schultz and Mr Tasker inspected the roof, with Mr Schultz giving Mr Tasker "a high-level overview of the Project works which included discussions of the Stage 1 Works and the Stage 2 Works when ready". At approximately 8.00am they descended from the roof and returned to work.
2. At about 9.15am Mr Blaine Sheridan informed Mr Schultz that there had been an incident and that he had called an ambulance as Mr Spillane had fallen off the roof.

After the Incident

1. On 9 February 2021 around 10.30am Inspector Nigel Wood of SafeWork arrived to investigate the incident. Mr Wood requested Mr Spillane's contact details, but Mr Baker said that Mr Spillane was a labour hire engaged by Hunter Resources and that they would be able to provide all requested information. Before this, Mr Schultz was not aware that Mr Spillane was not an employee of Harbour City Roofing.
2. Mr Schultz said that he went to find the required information as he believed the records were on site. Mr Schultz then remembered that the induction records for Mr Tasker and Mr Spillane were not completed at their induction. Mr Ryan Sheridan then completed the induction records with Mr Tasker and completed the induction record on behalf of Mr Spillane.

Statement of Mr Blaine Sheridan (DX 3)

1. Mr Blaine Sheridan swore a statement on 25 October 2023. Mr Blaine Sheridan was the general assistant to the project manager at the site.
2. Mr Sheridan has experience and training in delivering general site and specific WHS inductions and performing risk assessments. Mr Blaine Sheridan primarily assisted Mr Schultz on site and performed his roles when Mr Schultz was absent, including inducting contractors and explaining various safety protocols.

Day of the Incident

1. On the day of the incident Mr Blaine Sheridan was assigned to work on a window frame and glass between the top roof at the site and a lower awning above the walkway. While Mr Blaine Sheridan was performing the work he recalled seeing two men on the roof without harnesses.
2. Mr Blaine Sheridan said that once he removed the glass, he went towards the area of the two men, but they had already come down from the roof. One of these workers was Mr Spillane. Mr Blaine Sheridan said to the workers: "If you're going to go back up there, make sure you have your harnesses on."
3. Mr Blaine Sheridan said that one of the workers grunted "yes", indicating acknowledgment of the instruction.
4. Mr Blaine Sheridan said that whilst he was not the site foreman, people onsite knew that he was involved in training due to his involvement in providing inductions and toolbox talks.
5. After a break, Mr Blaine Sheridan was approached by Mr Tasker, informing him that there had been an accident. Mr Sheridan looked ahead and saw Mr Spillane lying on the ground below the roof. Mr Sheridan "noted" that Mr Spillane had landed not too far from where he had spoken to him and Mr Tasker earlier about using harnesses.

Character References (DX 4)

1. The defendant tendered three character references provided on behalf of Bermagui.

Reference from Mr Ian Watson

1. Mr Ian Watson prepared and signed a character reference dated 15 November 2024. Mr Watson is the director/manager of LJO Consulting Pty Ltd and a former director of Verlea Pty Ltd. Mr Watson's businesses have worked with Bermagui for "over 10 years".
2. Mr Watson has known Mr Ben Sheridan for approximately 20 years, and Mr Sheridan worked for Mr Watson's construction business for four years as a project manager.
3. Mr Watson was made aware of the incident and SafeWork prosecution by Mr Sheridan.
4. Mr Watson stated that he has observed Mr Sheridan and Bermagui to have "very detailed, structured and effective work health and safety systems in place" that extended to subcontractors. According to Mr Watson, "safety came first" in the projects carried out by Mr Sheridan for his company and that site documentation and daily toolbox meetings "were always up to scratch".
5. Mr Watson was aware that Mr Sheridan "attempted to ensure that safety guidelines and standards were followed rigidly by every subcontractor on site". In his experience with Bermagui, Mr Watson said that subcontractors were chosen for their compliance with WHS requirements "as much as price".

Reference from Mr Alan George

1. Mr Alan George prepared and signed an undated reference for Bermagui. Mr George is the Senior Project Manager for Loch Garman Roofing Pty Ltd and has worked with Bermagui and Mr Sheridan "for over 10 years", and previously with Mr Sheridan in the construction industry "going back another 20 odd years".
2. Mr Sheridan made Mr George aware of the incident and prosecution.
3. Mr George has observed Bermagui and Mr Sheridan to "have very detailed, structured and effective work health and safety systems in place". Mr George said that this extended to subcontractors.
4. Mr George stated that Bermagui did not take "any short cut" with implementing WHS systems and operated on the basis "that a safe site was a productive site". Mr George said that Mr Sheridan attempted to ensure that safety guidelines and standards were "followed rigidly by every subcontractor on site".

Reference from Ms Vittoria Borazio

1. Ms Vittoria Borazio provided a character reference for Bermagui and Mr Sheridan dated 17 November 2024. Mr Sheridan made Ms Borazio aware of the incident and prosecution.
2. Ms Borazio was the Chief Operating Officer for Father Chris Riley's Youth off the Streets (YOTS) for four years, and then the General Manager/Director for Bluefin Resources for two years. Over that six year period Ms Borazio "worked closely with Bermagui" across various projects.
3. YOTS have engaged Bermagui to perform works on multipurpose youth centres and YOTS offices multiple times. Bermagui provided these works pro bono.
4. Bermagui was also engaged by Bluefin Resources to build Sydney and Melbourne office fit outs. Bermagui was given the contract "due to their work ethics and commitment to timely project delivery and safe work practices". Ms Borazio explained that during these projects, Bluefin Resources workers continued working, meaning that it was "important that safe work practices were engaged" for both Bermagui workers and Bluefin Resources' staff.
5. Over the years, Ms Borazio has also observed Mr Sheridan and Bermagui to "have very detailed, structured and effective work health and safety systems in place", which extended to subcontractors. Ms Borazio said that her engagement with Bermagui to undertake a comprehensive review of their operations in October 2015 reinforced her belief in Bermagui's rigorous safety standards and processes.

Consideration

1. 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

1. 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].
2. 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].
3. 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."
4. 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].
5. 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.
6. 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.
7. 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."
8. 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."
9. 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."
10. My findings about the defendant's level of culpability are based upon the following: 1. The risk of a fall from or through the roof was actually known to Bermagui. Further, that risk should have been known by reason of the guidance material. Mr Blaine Sheridan saw Mr Tasker and Mr Spillane working on the roof without a harness. He did not inform either worker that no work was to be performed in the relevant area of the roof. 2. The likelihood of the risk occurring was significant, particularly given that Mr Spillane was a largely untrained worker. 3. The potential consequences of the risk were death or serious injury. 4. There were steps available to eliminate or minimise the risk. These steps are those set out in par 15 of Annexure A to the Amended Summons. 5. There was no burden or inconvenience to Bermagui in implementing those steps. 6. Mr Spillane suffered a serious injury which put him into hospital for three weeks. 7. 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. 8. Bermagui was a company which did have a comprehensive safety system and a demonstrated commitment to safety. However, its system proved to be inadequate, as admitted by the plea of guilty.
11. I find that the level of culpability of Bermagui is in the mid range.

Deterrence

1. 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]. If proof be needed that general deterrence is a most important factor in any prosecution arising from a fall from a roof, it can be found in par 1 of this judgment.
2. The penalty must reflect the need for specific deterrence.

Aggravating Factor

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

1. Bermagui has no prior convictions: s 21A(3)(e) CSP Act.
2. Bermagui is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Bermagui has been in business since 2009.
3. Bermagui is unlikely to re-offend: s 21A(3)(g) CSP Act.
4. Bermagui 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.
5. Bermagui 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 injury to Mr Spillane was caused by its actions.
6. Bermagui 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 Bermagui a 25% discount for an early plea.
7. Bermagui 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.

Parity

1. HLH was also prosecuted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident in which Mr Spillane was injured: SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501.
2. Where two or more offenders are involved in the same criminal conduct or enterprise, the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
3. The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
4. The Court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
5. It is appropriate for the Court to consider the respective contributions of Bermagui and HLH. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
6. I accept the submission of counsel for SafeWork (MFI 1 pars [57] - [58]) that while care should be taken to avoid an unjustified disparity in the sentences imposed, there are significant differences between the culpability of Bermagui and HLH. As counsel pointed out, HLH was a labour hire company which employed Mr Spillane and assigned him to work with Harbour City Roofing at the site. HLH did not have control of the site, nor was it responsible for supervising or instructing workers at the site.
7. HLH pleaded guilty to a breach of s 33 of the WHS Act, which carried a maximum fine of $588,540. By contrast, Bermagui has pleaded guilty to a s 32 offence, which carries the maximum penalty set out above. Judge Scotting determined that the appropriate fine for HLH was $110,000, which was reduced by 25% to reflect the discount for the plea of guilty. There was thus a fine of $82,500 imposed on HLH.

Capacity to Pay a Fine

1. 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.
2. 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."
3. There was no submission about capacity to pay, so this issue does not arise. However I do take into account the size and scope of Bermagui.

Costs

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

Penalty

1. My orders are: 1. Bermagui Constructions Pty Ltd is convicted. 2. The appropriate fine is $300,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Bermagui Constructions Pty Ltd to pay a fine of $225,000. 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 Bermagui Constructions Pty Ltd to pay the prosecutor's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024