SafeWork NSW v Evolve Roofing Pty Ltd

SafeWork NSW v Evolve Roofing Pty Ltd - [2023] NSWDC 75 - NSWDC 2023 case summary — Zoe

Introduction

The roofing industry is dangerous if simple and effective safety precautions are not taken. The following table of roofing falls cases heard in this court lists the deaths or injuries which resulted: [2023] NSWDC 56 SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney Fractured skull, two broken wrists, a cracked ear bone and two cracked ribs. [2023] NSWDC 13 SafeWork NSW v Parrish Group NSW Pty Ltd Right foot fracture and dislocation, a left shoulder dislocation and an L5 vertebral compression fracture. [2022] NSWDC 524 SafeWork NSW v Leda Form Group Pty Ltd Death. [2022] NSWDC 526 SafeWork NSW v LJW Solar Pty Ltd Burst fracture and left interior pubic ramus (pelvis) fracture. [2022] NSWDC 437 SafeWork NSW v Empire Contracting Pty Ltd Death. [2022] NSWDC 407 SafeWork NSW v Advanced Roofing Sydney Pty Ltd Multiple traumatic injuries to upper limbs, lower limbs and face. [2022] NSWDC 290 SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse Fractured rib, multiple pelvic fractures and a fractured wrist. [2022] NSWDC 175; [2021] NSWDC 707 SafeWork NSW v Carricks Plumbing and Gasfitting Pty Ltd; SafeWork NSW v Lewin Roofing Pty Ltd Three vertebrae fractures in neck, fractured skull, subdural/extradural haematoma to brain and T2 endplate fractures. [2021] NSWDC 258 SafeWork NSW v PV Solar Pro Pty Ltd Death. [2021] NSWDC 86; [2020] NSWDC 776 SafeWork NSW v CCP Remedial Pty Ltd; SafeWork NSW v MACFIN Building Solutions Pty Ltd Death. [2021] NSWDC 44; [2020] NSWDC 774 SafeWork NSW v Easy Fall Guttering Pty Limited; SafeWork NSW v Aceline Plumbing Group Pty Ltd Serious spinal injuries. [2020] NSWDC 420 SafeWork NSW v Landmark Roofing Pty Ltd (No.2) Death. [2020] NSWCCA 319 Attorney General v Jamestrong Packaging Australia Pty Ltd Death. [2018] NSWDC 387 SafeWork NSW v The Austral Brick Co Pty Limited Death. [2018] NSWDC 350 SafeWork NSW v Opcon Plumbing Pty Ltd; SafeWork NSW v Annous Death. [2018] NSWDC 61 Safe Work NSW v Co-Wynn Building Contractors Pty Ltd Death. [2018] NSWDC 104; [2017] NSWDC 285 SafeWork NSW v Powell; SafeWork NSW v Tolputt Fractured shoulder. [2018] NSWDC 60 Safe Work NSW v Christopher Michael Butler; Safe Work NSW v Edgesafe Pty Ltd Neck, back and wrist fractures, bowel tear and spleen laceration. [2017] NSWDC 340 SafeWork NSW v CTN Construction Pty Limited Traumatic brain injury, fractures to skull and facial bones, punctured lung, fractured collarbone and minor neck fractures. [2015] NSWDC 295 Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam Fracture to the spine causing spinal cord damage and tetraplegia. [2014] NSWDC 183 WorkCover Authority of NSW v Australian Native Landscapes Fractured left pelvis, two punctured lungs, four fractures of left arm and cuts and abrasions to head.

[6]

Background

The parties presented an Agreed Statement of Facts (PX 1, Tab 2) which is summarised below.
Evolve operated a business that installed metal roofing on residential and commercial buildings. Mr Nathan Rees was the sole director.
On 30 November 2019 Evolve was engaged by the Presbyterian Ladies College Sydney (the School) to replace the roof of its gymnasium. The arrangement was that for the period in which Evolve was undertaking the roofing work, it would have exclusive control of the area around the gymnasium, including matters pertaining to health and safety.
Evolve subcontracted Metro Crane Services Pty Ltd (Metro Crane) to provide, set up and operate a 100-tonne mobile hire crane, to load roof sheets and other roofing material onto the existing roof of the gymnasium. Evolve employees would then fit and fix the roof sheets and materials to complete the job.
Evolve employed Mr Adam Rees and Mr Wade Taylor to perform work at the site.
Mr Adam Rees was a qualified plumber. He had been working with Evolve for five years, commencing as an apprentice. He had received working at heights training.
Mr Taylor had been working for Evolve for about four or five years. He had not received working at heights training. Mr Taylor was on site to provide information to the dogman about the loads to be lifted.
Metro Crane employed the following workers to perform work at the site: 1. Mr Grant Ible, dogman. 2. Mr Craig Truscott, lead dogman. 3. Mr Leonard Bailey, crane operator.
Mr Ible had been working with Metro Crane for 18 months prior to the incident. He had not worked with cranes prior to working with Metro Crane. He held a General Construction Induction Training Card Licence and a High Risk Work Licence in relation to licence classes DG (Dogging) and HR (Heavy Rigid) Truck. Mr Ible had not received any training for working at heights. Mr Ible had previously undertaken dogging work for craning roof sheets and roof material onto roofs. He did this on average once a week for the 18 months that he worked for Metro Crane. Mr Ible had previously used a harness when undertaking work on roofs.
Mr Truscott had been employed with Metro Crane from March 2017 and had worked in the crane industry for 17 years, including craning up roof sheets and roof materials. Mr Truscott had received working at heights training.
Mr Bailey had been working with Metro Crane for approximately 13 months and had worked as a dogman for over 10 years.

[8]

The Incident

On 6 December 2019 Mr Nathan Rees and Mr Adam Rees arrived at the site at 6.30am. Mr Taylor arrived shortly afterwards. Mr Nathan Rees attended the site to go through Evolve's Safe Work Method Statement (SWMS) with Mr Adam Rees and Mr Taylor. No-one from Metro Crane was on site at the time.
Mr Nathan Rees and Mr Adam Rees discussed the SWMS and the work for the day. Mr Nathan Rees told Mr Adam Rees to wear a harness. Mr Adam Rees and Mr Taylor signed the SWMS and Job Safety Analysis (JSA). Mr Nathan Rees instructed Mr Taylor to work on the ground assisting the dogman. Mr Nathan Rees left the site prior to the Metro Crane employees arriving to commence work.
The Metro Crane employees arrived at approximately 7.00am. The Metro Crane employees did not see Evolve's SWMS or any other safety documentation produced by or for Evolve. Mr Adam Rees did not think that the Metro Crane employees needed to see Evolve's SWMS as he assumed that Metro Crane would have its own.
Mr Adam Rees went through the job with the Metro Crane workers. Mr Ible was to undertake dogging work from the roof.
The Metro Crane crew set up the crane, which took approximately an hour and a half. Once the crane was set up, the Metro Crane crew began unloading the roof materials, preparing to lift them onto the roof. Mr Bailey and Mr Adam Rees looked at the roof from the window and Mr Bailey considered that there was enough room to land the sheets while ensuring that everyone on the roof was at a safe distance from the skylights.
Mr Adam Rees decided that the roof sheets could not be placed directly in the middle of the skylight bays due to the presence of eye bolt harness points. He decided that the loads should be landed on one side of the skylight bays, and while the loads were being landed, he would stand between the roof sheets and the skylight bays. He considered that he did not need to wear a harness as he would not be working near the live edges of the skylights.
Once the crane was set up, Mr Adam Rees and Mr Ible accessed the roof using the window of the adjacent building. Neither of them were wearing harnesses. Mr Taylor remained on the ground with Mr Truscott, who acted as a ground dogman, attaching the loads before they were raised up to the roof. Mr Bailey was operating the crane.
Mr Adam Rees instructed Mr Ible where the roof sheeting should be landed, which Mr Ible then communicated via radio to the Metro Crane workers on the ground.
Approximately 8-10 loads of roofing sheets had been placed on the roof before lunch. These sheets were placed across the roof at intervals of approximately 7 metres.
After lunch Mr Adam Rees and Mr Ible returned to the roof to load the remaining roof sheets, as well as bags of insulation wool. Mr Ible guided Mr Bailey over the radio as he landed bags of insulation wool.
At approximately 2.15pm, a bundle of 10 bags of insulation wool was being lifted onto the roof using double slings. Mr Ible was standing in close proximity to a skylight bay. As the load was being lifted, Mr Adam Rees walked across the roof toward Mr Ible, near where the load would be landed. He directed Mr Bailey to land the load. At this point, the wind had picked up causing the bundle of insulation bags to swing toward Mr Ible, who was standing near the ridge of the roof. Mr Adam Rees and Mr Ible both tried to grab the bundle to stop it swinging toward Mr Ible. Mr Ible stepped backward onto a skylight and fell through it and onto the gymnasium floor 9 metres below.
Mr Ible sustained the following injuries: 1. Extradural haemorrhage, intraparenchymal haemorrhage, left frontal lobe and high intracranial pressure. 2. Bilateral LeFort 2 fracture of the skull. 3. Left eye retrobulbar haematoma. 4. Left pneumothorax with bilateral pleural effusions. 5. Ruptured splenic artery and splenic laceration, requiring splenectomy. 6. Distal pancreatic injury, requiring distal pancreatectomy. 7. Pelvic fractures (minimally displaced left inferior pubic ramus, left iliac wing and left sacral ala).
Mr Ible returned to Metro Crane on light duties 12 months after the incident. However, he underwent a shoulder reconstruction in November 2021 and has not yet been able to return to work.

[9]

Systems of Work Prior to the Incident

Neither Mr Adam Rees nor Mr Ible were wearing harnesses when accessing the roof or while working on the roof. There were two harnesses available on site at the time of the incident. Mr Ible had looked for a harness in the crane but could not find one.
Mr Adam Rees claimed that he informed Mr Ible that there was no safety mesh under the skylights and that Mr Ible declined his offer of a harness, saying that he would just work "around" the skylights. Mr Ible claimed that he was not told to wear a harness by anyone on site, including Mr Adam Rees, and that he was not told of the lack of safety mesh underneath the skylights. There are thus no agreed facts in relation to such matters.
Mr Ible observed that while there were anchor points on the roof upon which he could hook a harness, there were no static lines between the anchor points. This meant that had he been using a harness, when he was required to move from one anchor point to the next, he would have had to walk some distance with his harness unhooked.
Evolve did not ask whether the Metro Crane workers had access to their own harnesses or ensure that Metro Crane workers were instructed to wear harnesses when working on the roof. Evolve did not confirm that the workers at Metro Crane who were to be working from height had appropriate training. Metro Crane had provided working at height training to some of its workers, but not all of them. Mr Ible had not received working from height training.
Prior to commencing work at the site, Evolve provided the School with a SWMS dated 29 November 2019 which Mr Nathan Rees had prepared. The SWMS required the following: 1. Completion of a risk assessment, including review of the principal contractor's Site Safety Plan and Emergency Procedures, and the SWMS of any subcontractors. This was the first necessary step on all jobs. 2. Site-specific induction training for all project workers, with the signatures of all inducted workers on an induction register.
The SWMS also required that harnesses be worn at all times and that the harnesses, ropes, shackles and anchor or fixing points be checked. It also required implementation of "fall arrest systems" when working at height. The SWMS noted that, when installing roof sheeting and accessories, a harness must be worn to "prevent falling off or through the roof".
On 2 December 2019 Mr Nathan Rees undertook a risk assessment for the work on the gymnasium roof. The risk assessment noted the following: 1. "Existing harness points for use…stay clear of skylight bays as no mesh is present". 2. "Roof access will require harness point attachment until scaffold is installed…No penetrations only skylight bays are fall zones". 3. "Skylights with no mesh" and, "Stay clear of skylights. Land packs in between bays". 4. "Come up with a plan with the crane company and operators to lift packs safely".
A JSA was conducted on 2 December 2019 by Mr Nathan Rees. It noted the following: 1. "Appropriate footwear to be worn, harness near live edges, note no mesh under skylights". 2. "No wire under skylights". This was given a risk rating of "1" with the action item, "Land sheets in the middle of skylight bays. Lock gates to School area". 3. Regarding "access to roof", the control measure was, "Clip harness points from inside window".
Evolve's SWMS, JSA and risk assessment were not provided to Metro Crane. Metro Crane's employees were not inducted onto the site. Evolve did not confirm that Metro Crane had inducted its employees.
The Pre-Job Inspection and Toolbox Talk Form completed by Metro Crane in respect of the job stated that fall protection was not required.
Evolve did not confirm that Metro Crane had its own SWMS or safety documentation prior to work commencing on the roof, nor did it seek a copy of any such documentation from Metro Crane.
Metro Crane's workers signed a SWMS for Mobile Crane Slewing prior to commencing work on 6 December 2019.
Mr Wilkinson has stated that he was told the roof was safe to access and the skylights were noted as a hazard.
On 6 December 2019 Evolve did not have a policy prohibiting workers from subcontracted companies from working on the roof unless they were using proper fall protection equipment.
On 6 December 2019 Mr Adam Rees was the most senior Evolve worker on site.
Mr Ible had performed dogging work for craning up roof sheets on prior occasions. He did not recall any discussion occurring regarding working at height.

[10]

Guidance Material

Regulation 78 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) required the use of barriers to prevent a fall.
The SafeWork NSW Code of Practice, Managing the Risk of Falls at Workplaces, dated August 2019 (the Falls Code) was available to Evolve prior to the incident. The Falls Code included: 1. At par 7.3 a particular reference to lanyards and harnesses, and the mandatory requirement for workers to be instructed in their safe use. 2. At par 3.3 a reference to risk assessment and a recommendation that when assessing the risks arising from each fall hazard there be consideration of a number of factors, including "the adequacy of current knowledge and training to carry out work safely, for example, young, new or inexperienced workers may be unfamiliar with the work."
The SafeWork Australia Information Sheet, Safe Work on Roofs, dated January 2016 was also available to Evolve. The Information Sheet identified "fragile surface, skylights, holes or vents" as a hazard to consider in managing fall risks and referred to safe systems of work, including "Individual fall-arrest systems with harnesses and anchor points and safety nets".
The Information Sheet further stated that all roofs "should be treated as fragile until a competent person has confirmed they are not" and that roofs are likely to be fragile where they are constructed of a number of materials including "polycarbonate or plastic commonly used in skylights". Protection must be provided where there is a risk of falling through the roof, including "safety mesh secured under fragile roofing or skylights" and/or "a harness system with adequate anchorage points, along with appropriate training and supervision".
Another Code of Practice, Safe Work on Roofs: Part 1: Commercial and Industrial Buildings, dated 2009 (the Roof Code) was also available to Evolve. At par 5.6 the Roof Code provided that before carrying out any work on roofs, a risk assessment should be carried out to identify safe access and "whether there are any brittle or fragile roofs, skylights or roof openings within the work area," with hazardous areas to be clearly marked as "no go" zones and measures put in place to prevent persons accessing them or, where that is impracticable, "a fall arrest system incorporating a safety harness and effective anchorage point should be used".
The SafeWork NSW Construction Falls from Heights Blitz Checklist provided a checklist for working at heights. One item on the checklist specified that falls from heights are the biggest killer on NSW construction sites and had a check box that stated: "Controls in place to prevent falls through fragile/brittle roofs such as asbestos, plastic roof sheeting and skylights (eg roof mesh, barriers, exclusion zones)."

[27]

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. Evolve had actual knowledge of the risk posed by working near the unprotected skylights. The risk was specifically noted in the risk assessment and the JSA created by Mr Nathan Rees. 2. The likelihood of the risk occurring was significant. This case and, sadly, many others which come before this court demonstrate that when workers are handling and manoeuvring materials on a roof, there is always a real risk that a false step will result in a fall from or through the roof. 3. The potential consequences of the risk are death or serious injury, as demonstrated in the table set out at the start of this judgment. 4. The steps to eliminate or minimise the risk were well known to Evolve, and were set out in Evolve's safety documentation. In an uncanny echo of the previous case of SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202, two harnesses were available on site but were left in a vehicle parked at the site. 5. There was no burden or inconvenience in implementing steps which Evolve had already documented. 6. The harm caused to Mr Ible was catastrophic and permanent. 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. I accept the submission of counsel for Evolve that Evolve had a pre-existing commitment to safety and had implemented appropriate systems to identify hazards, assess risks and put in place control measures. Mr Nathan Rees had inspected the site and completed a JSA and a Risk Assessment. He had also physically tested the anchor points to ascertain that they were adequately secured. The Evolve SWMS stated that harnesses were to be worn at all times. Mr Nathan Rees personally attended the site to go through the Evolve SWMS in a pre-start talk with the Evolve workers. 9. While Mr Nathan Rees did everything appropriate to ensure safety, he was badly let down by Mr Adam Rees, the senior employee on the site and the job supervisor. He disobeyed all of the appropriate safety steps required of him by Mr Nathan Rees. Nevertheless, Evolve is responsible for the conduct of Mr Adam Rees on 6 December 2019. 10. I take into account that there were contributions to the risk by Metro Crane, which casts light upon the real level of culpability of Evolve.
I find that the level of culpability of Evolve is in the mid range.

[31]

Capacity to Pay a Fine

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.
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."
On the evidence in the affidavits and given orally by Mr Nathan Rees and Mr Popovski, I am satisfied that Evolve has a reduced capacity to pay a fine. I accept the evidence of Mr Rees that in past years, before the involvement of Mr Popovski in performing accounting work for the company, personal expenses were paid from company funds, and that these payments were treated as director's loans. Mr Popovksi has brought some degree of order to the finances of the company and Mr Rees is now paid a wage rather than taking drawings. While in the accounts of the company the funds paid for the expenses of Mr Rees in the past are treated as loans, these moneys have been spent and are not available to pay a fine.
I accept the evidence that there is a large debt owing to the Australian Taxation Office, and that the ATO is accepting, and has been paid, monthly instalments of $20,000 which should discharge that debt in about 18 months time.
I also accept that the income of the company has been adversely affected, firstly by the COVID-19 pandemic, and secondly by the extreme wet weather in 2022, which restricted the amount of outdoor work which could be carried on.
It is for those reasons that I have reduced the fine which would otherwise be imposed for the commission of this offence.

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