SafeWork NSW v Coplex Construction Pty Ltd - [2023] NSWDC 165 - NSWDC 2023 case summary — Zoe

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SafeWork NSW v Coplex Construction Pty Ltd

[2023] NSWDC 165

District Court of NSW|2023-05-16

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-05-16

Catchwords

(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 DPP v Gregory [2011] VSCA 145
(2011) 34 VR 1 Green v The Queen [2011] HCA 49

Source

Original judgment source is linked above.

Catchwords

(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 DPP v Gregory [2011] VSCA 145(2011) 34 VR 1 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60(2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242(1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92(2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263

Judgment (27 paragraphs)

[1]

[9]

Guidance Material

Clause 78 of the Work Health and Safety Regulation 2011 (the Regulation) provides that duty holders must manage safety risks associated with a fall, including for openings through which a person could fall.
Subclause 79(3) of the Regulation sets out a hierarchy of controls to adequately protect against the risk of a fall, 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."
Subclause 79(5) defines "fall prevention devices" as including edge protection and covers.
The work was "high risk construction work" within the meaning of cl 291 of the Regulation because it involved work in which a person could fall more than two metres. Pursuant to cl 291(3) Coplex was required to prepare a Safe Work Method Statement (SWMS) specifying the hazards related to the work, the risks to health and safety associated with those hazards, the measures to control the risks, and how the measures are to be implemented, monitored and reviewed.
The SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, April 2016 (the Code) was published and available to Coplex prior to the incident. The Code provided: 1. The Regulation requires duty holders to work through the hierarchy of controls to choose the control measure or combination of measures that most effectively eliminates or minimises the risk in the circumstances. 2. A fall prevention device (for example, a secure fence, edge protection, work platform or cover) must be used where persons are working near and around holes, penetrations and openings through which a person could fall, if it is reasonably practicable to do so. 3. If a penetration cover is used as a control measure it must be made of a material strong enough to prevent people or objects falling through the hole, penetration or opening and should be securely fixed to prevent dislodgement or accidental removal. Penetration covers should be designed to safely withstand a point load of at least 200 kilograms. 4. Guard rails may be used to provide effective fall prevention around openings in floor and roof structures.
The Safe Work Australia, Safe Work on Roofs Information Sheet, January 2016 (the Information Sheet) was published and available to Coplex prior to the incident. 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. 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. 4. 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. 5. The risk of falls must be managed using the most effective control measures that are reasonably practicable, in accordance with the hierarchy of controls. 6. Protection must be provided if there is a risk of falling through the roof and work is being done on the top of the roof. Control measures to prevent injury from work on roofs include using barriers such as guard rails or covers that are secured and labelled with a warning.

[14]

Systems of Work Prior to the Incident

Prior to the incident Coplex's work health and safety, environmental and quality (WHSEQ) system included the following: 1. Employment of safety specialists, including a Safety Officer to develop its site safety systems and a WHSEQ Manager for the site. 2. A WSHEQ Manual (as at May 2019). 3. A SWMS for the site issued by Coplex on 11 March 2019. The SWMS identified control measures related to working at height, openings and penetrations. All Coplex workers were trained in and signed the SWMS. 4. A SWMS issued by Leda. Coplex's Safety Officer Dr Hua conducted a review of Leda's SWMS, as recorded in the SWMS Checklist signed on 17 September 2018. In September 2018 Coplex requested amendments be made to the SWMS and in July 2019 Leda provided Coplex with a revised SWMS for the site. The revised Leda SWMS identified the risk of falls arising from penetrations, voids, shaft openings and working at heights over two metres. It identified the use of penetration covers secured by nails and marked with paint as an appropriate control measure, as well as the installation of a leading edge or handrails. The revised Leda SWMS was signed by Mr Riche. 5. Leda's OHS & Rehabilitation Management System. 6. Site specific inductions and site induction records. 7. Weekly toolbox talks. 8. A site safety committee, which included representatives from each contractor and subcontractor on site. 9. Fortnightly safety inspections. The "Form 020 Fortnightly Safety Inspection [Site] Checklist" created for the 17 August 2019 inspection recorded that all lift shaft openings were closed off and that edge protection was provided for work at heights. 10. Weekly safety walks. The safety walk on 20 August 2019 did not include the roof level of Building B. 11. Subcontractor meetings. 12. Managing worker concerns by way of a WHSEQ Noticeboard and site incident report and register located on site. Coplex's management also took steps where it was notified of safety issues on site, including by: 1. Sending emails warning contractors and subcontractors that they are in breach of safety requirements. 2. Instructing the team on site to conduct toolbox talks and stop work meetings to remind workers of their responsibilities and ensure compliance with the SWMSs. 1. Monthly HSE reports.

[19]

Objective Seriousness of the Offence

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].
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].
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."
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].
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.
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.
The Court of Criminal Appeal has examined the sentencing process with regard to the 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."
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."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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."
My findings about the defendant's level of culpability are based upon the following: 1. The risk was known to and recognised by Coplex. Further, the risk was the subject of available guidance material. The work being done was recognised as "high risk" construction work. 2. There was a significant prospect of the risk of a fall occurring when workers were moving back and forth on the roof while concentrating on the task at hand. 3. The potential consequences of the risk were death or serious injury. 4. Simple and effective steps to eliminate or minimise the risk were well known to Coplex. 5. There was little or no inconvenience in such steps being implemented. Coplex had a duty to enforce the Leda SWMS, and the power to do so. 6. The death of Mr Riche was caused by the failure of Coplex to ensure safety. Two other workers were put at risk. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. There was no explanation provided by Coplex as to why the penetration was not covered or why the roof area on Building B was not inspected, before workers were allowed back upon the roof. The Coplex Site Manager for Building B (Mr Hallani) was working alongside Mr Riche when the incident occurred but did nothing to cover the penetration. The open void was there to be seen. 9. I accept the submission of counsel for Coplex that this was a one-off failure and not a systems failure.
I find that the level of culpability of Coplex is in the upper half of the mid range.

[22]

Mitigating Factors

Coplex has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Coplex is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Coplex had been in business for eight years at the time of the incident.
Coplex is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Coplex has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. 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.
Coplex has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Riche was caused by its actions.
Coplex entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. 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) Crimes (Sentencing Procedure) Act 1999.
Counsel for the prosecutor submitted (MFI 1, pars 44-48) that the discount should be 20% because of the lengthy period between the first return date on 27 September 2021 and the entry of a plea of guilty on 7 November 2022, and the large number of mention dates. In my view the delay in finalisation of these proceedings lies at the feet of the prosecutor. The affidavit of Ms Schafer-Gardiner (DX 3), solicitor for Coplex, explains that it was not until 6 October 2022 that the prosecutor provided documents, additional to those in the original brief, which clarified the crucial factual issue of whether or not the penetration was covered at the time of the incident.
It is appropriate to give Coplex a 25% discount for an early plea.
Coplex gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.
Counsel for the prosecutor conceded (MFI 1 par 43) that "Coplex has put forward a stronger subjective case than Leda". That will be taken into account on sentence.

[23]

Parity

Leda was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Riche died as a result of falling through the penetration.
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].
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."
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.
It is appropriate for the court to consider the respective contributions of Leda and Coplex. The reason for doing so is not to reduce the culpability of either 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].
I find that Coplex was no less culpable than Leda. However, counsel for the prosecutor acknowledged that Coplex had a stronger subjective case than Leda.
Leda had a contractual responsibility to install coverings over the penetrations. Mr Riche was an employee of Leda. Coplex had its own independent obligation to conduct site inspections and in particular, to ensure safety by making sure that all penetrations were covered. There was no explanation for why Coplex did not conduct a roof inspection for Building B before workers were allowed to resume working on the roof. Coplex was in overall control of the site. Mr Hallani, the Coplex Site Manager for Building B, was actually working with Mr Riche at the time of the incident. He could not have failed to notice the open penetration. His default is the default of Coplex - s 244 of the Act.

SafeWork NSW v Coplex Construction Pty Ltd

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Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (29)

Cited By (2)