SafeWork NSW v Harbour City Roofing Pty Ltd (In Liquidation)

Decision: (1) Harbour City Roofing Pty Ltd (In Liquidation) is found guilty.
(2) Harbour City Roofing Pty Ltd (In Liquidation) is convicted.
(3) Order Harbour City Roofing Pty Ltd (In Liquidation) to pay a fine of $600,000.
(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 Harbour City Roofing Pty Ltd (In Liquidation) to pay the prosecutor’s costs.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence - parity
COSTS – prosecution costs
OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Fines Act 1996 (NSW), s 122
Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 32, 33, 155, 275
Work Health and Safety Regulation 2017 (NSW), cll 78, 79

Cases Cited: Baiada Poultry v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations v Nash [2016] NSWCCA 37
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
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 Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
WorkCover Authority of NSW v TRW [2011] NSW IR Comm 52

Category: Principal judgment

Parties: SafeWork NSW (Prosecutor)
Harbour City Roofing Pty Ltd (Defendant)

Representation: Counsel:
Mr A Mykkeltvedt (Prosecutor)
Solicitors:
Department of Customer Service (Prosecutor)

File Number(s): 2023/00039293

JUDGMENT

Introduction

1. By summons filed on 2 February 2023 (Summons) the defendant Harbour City Roofing Pty Ltd (In Liquidation) (Harbour City) is charged by SafeWork NSW (SafeWork) with failing to comply with a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act), contrary to s 32 of the WHS Act. The offence is described in the Summons as follows:

“On 9 February 2021 at Hurstville Aquatic Leisure Centre, located on the Corner of King Georges Road and Forest Road, Hurstville NSW (‘the site’), Harbour City Roofing Pty Ltd (the defendant), being a person conducting a business or undertaking who had a duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, the health and safety of workers while workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed a worker, Mr Phillip Spillane, to a risk of death contrary to section 32 of the Act.”

2. Harbour City is in liquidation. The hearing against it proceeded ex parte. There was evidence that the liquidator had been informed of the hearing date, in accordance with a previous order of the court.

3. The evidence tendered by SafeWork was as follows:

4. A three-volume court book (PX 1, PX 2, PX 3). This included affidavit evidence from witnesses, in accordance with a previous order of the court.

5. A s 155 Notice to the defendant and its response (PX4).

6. The court was greatly assisted in the preparation of this judgment by the form and content of written submissions by counsel for SafeWork (MFI 1).

Background

5. At the time of the alleged offence, the defendant operated a business involving roofing and cladding works. It employed about 15-18 workers.

6. On 25 November 2020, the defendant was engaged by Bermagui Constructions Pty Ltd (Bermagui) as a subcontractor to carry out roof and ceiling works at Hurstville Aquatic Leisure Centre located at the Corner of King Georges Road and Forest Road, Hurstville (the site). Bermagui was the principal contractor for the project.

7. Subsequent to its engagement to work at the site, the defendant engaged HLH NSW Pty Ltd (HLH), a labour hire company, to provide general labourers to assist with the conduct of work at the site.

8. Mr Philip Spillane began employment with HLH as a general labourer on 27 January 2021. On the same day, he was assigned to work with the defendant at the site. He had no experience or formal training in relation to working at heights though had worked in the construction industry as a labourer.

The Incident

9. On 9 February 2021, Mr Spillane was initially working on the ground level of the project, engaged in general labouring tasks.

10. On that day, an Elevated Work Platform that had previously been used by workers for the defendant was in use by another trade at the site. Mr Tasker (a roofer employed by Harbour City) stated that he spoke to Mr Darren Schultz, a Bermagui supervisor, about the other work that could be completed. 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. Mr Schultz has a different account of these events. He stated that he took Mr Tasker onto the roof to show him the scope of works for “Stage 2”, that had not yet begun.

11. Mr Tasker then decided to work on the external section of roof to replace roof sheets. This task required workers to physically be present on the roof.

12. Mr Tasker asked Mr Spillane to assist him with the work on the external section of the roof.

13. Mr Spillane began bringing materials onto the roof and assisting with the removal of metal sheets and insulating the roof.

14. There was no edge protection or other fall prevention measure in place in the relevant area of the roof.

15. Neither Mr Spillane nor Mr Tasker were using a harness or similar system.

16. Mr Blaine Sheridan, a general assistant to the project manager for Bermagui, stated that he saw Mr Tasker and Mr Spillane working on the roof between 8am and 9am.

17. Mr Sheridan stated that he informed Mr Tasker that the workers should not be on the roof without a harness. Mr Spillane disputed that Mr Sheridan informed Mr Tasker or Mr Spillane that no work should be performed in the relevant area of the roof.

18. No steps were taken by Mr Tasker to procure a harness or other fall prevention or protection systems.

19. 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.

20. At about 9am, Mr Spillane fell more than 5 metres through a roof soffit onto the concrete ground below.

21. Mr Spillane thought he was stepping down onto a covered pillar, but he fell straight through.

22. Mr Spillane gives the following description of the work he performed on 9 February 2021:

“I input the insulation into the roof. I was up in the scissors lift for this job inside the building.

I also cut the insulation to the appropriate size on the ground floor.

I assisted in removing the metal sheets on the outside roof – this involved unscrewing the sheets up on top of the roof and then the sheets being passed down to me on the ground floor.

I cut black plastic to the appropriate size, then proceeded to bring it to the top of the roof. I then stepped down on to what I thought was the pillar which was covered by a circular metal sheet in the shape of the pillar, but it wasn’t and I feel [sic] straight through.

All instructions were given by the roofer Blake [Tasker], no one else present.”

23. By the time of the incident, Mr Spillane had climbed to and from the roof a number of times. He stated that he had unscrewed approximately five roofing sheets prior to the incident.

Injuries

24. Mr Spillane suffered severe injuries including fractures to his wrists requiring surgery and a dislocated elbow. He spent about three weeks in hospital after the incident and was discharged on 2 March 2021.

Post-incident

25. After the incident, SafeWork issued an Improvement Notice to the defendant requiring it to eliminate the risk of falls from the awning roof and to develop a Safe Work Method Statement (SWMS) before carrying out any further high risk construction work involving a risk of falling more than two metres.

26. After the incident, the following were installed at the site:

27. temporary handrail edge protection attached to the external roof area where Mr Spillane was working;

28. a catch scaffold under the external roof area where Mr Spillane was working; and

29. a safety net inside the aquatic centre buildings.

30. The defendant also updated its SWMS and ceased using labour hire workers.

The Elements of the Offence

28. The defendant is charged with an offence under of s 32 of the WHS Act. Section 32 creates an offence where:

29. the person has a health and safety duty;

30. the person fails to comply with that duty; and

31. the failure exposes an individual to a risk of death or serious injury or illness.

32. In the context of the current proceedings, the relevant duty arises under s 19(1) of the WHS Act, which provides that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, and workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

33. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt.

34. The elements of an offence under s 32 of the WHS Act for a breach of a s 19(1) duty are:

35. Element 1 – The defendant was conducting a business or undertaking.

36. Element 2 – The defendant owed a duty to ensure, so far as reasonably practicable, the health and safety of:

(a) workers engaged (or caused to be engaged) by it or workers whose activities in carrying out work were influenced or directed by the defendant; (b) while the workers were at work in the defendant’s business or undertaking.

3. Element 3 – The defendant failed to comply with its health and safety duty.
4. Element 4 – The failure exposed an individual to a risk of death or serious injury.

Relevant principles

32. The general description of the duty in s 19(1) of the WHS Act is supplemented by s 19(3) which, without limiting s 19(1), provides guidance as to the content of the duty. Relevantly, s 19(3) requires a business or undertaking to ensure, so far as is reasonably practicable:

33. the provision and maintenance of a work environment without risks to health and safety: s 19(3)(a);

34. the provision and maintenance of safe plant and structures: s 19(b);

35. the provision and maintenance of safe systems of work: s 19(3)(c);

36. the safe use, handling, and storage of plant, structures and substances: s 19(3)(d),

…

5. the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking: s 19(3)(f).

6. The requirement to “ensure” means to “guarantee or make certain”: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

7. Pursuant to s 12A of the WHS Act, the offence is a strict liability offence.

8. Pursuant to s 16, more than one person can concurrently owe the same duty. Each person who owes the relevant duty must comply with it to the requisite standard. Duties are not transferrable: s 14.

9. Section 17 deals with management of risks, providing that a duty to ensure health and safety requires a person to eliminate or minimise risks so far as is reasonably practicable.

10. Reasonable practicability is defined in s 18 in terms of what is, or was, reasonably able to be done to ensure health and safety. In assessing reasonable practicability, the court is to consider all relevant matters, including those enumerated in s 18, namely:

11. the likelihood of the risk concerned occurring;

12. the degree of harm that might result from the risk;

13. what the defendant knows or ought reasonably to know about:

(a) the risk, and (b) ways of eliminating or minimising and risk;

4. the availability and suitability of ways to eliminate or minimise the risk; and

5. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

6. The state of knowledge required by s 18(c) is to be assessed objectively – that is, the section refers to the level of knowledge possessed generally by persons engaged in the relevant field of activity, not by reference to the actual knowledge of the specific defendant in the particular circumstances: Laing O*’*Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

7. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ. In Baiada Poultry v The Queen [2012] HCA 14; (2012) 246 CLR 92 the High Court (French CJ, Gummow, Hayne and Crennan JJ) observed at [15] in relation to s 21 of the cognate legislation in Victoria:

“All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in the performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of the working environment does not, without more, demonstrate that in employer has broken the duty imposed under s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.”

40. It is incumbent upon those holding a duty to take a proactive approach to safety issues: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 and to have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J.

41. A defendant must have regard not only for the ideal worker, but for one who is hasty, careless, inattentive, inadvertent or even disobedient (in respect of conduct that is reasonably foreseeable): Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ; WorkCover Authority of NSW v TRW [2011] NSW IR Comm 52 at [13] per Boland J.

42. As concerns the fourth element of the offence, the question of causation is to be assessed by reference to whether the relevant act or omission was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. The question is to be assessed via the application of common sense to the fact, bearing in mind that the purpose of the inquiry is to attribute responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground Operations at [130].

Elements 1 and 2

43. I am satisfied beyond a reasonable doubt that the defendant was conducting a business or undertaking.

44. I am satisfied beyond reasonable doubt that the defendant owed Mr Spillane a duty to ensure his health and safety in accordance with s 19(1) of the WHS Act.

45. Mr Spillane was engaged by the defendant – via a labour hire company – to conduct work on its behalf at the site, subject to the directions and supervision of other workers of the defendant. Relevantly, pursuant to s 7(1)(d) of the WHS Act, a person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU) including as “an employee of a labour hire company who has been assigned to work in the person’s business or undertaking”.

46. Accordingly, the first two elements of the offence are satisfied beyond reasonable doubt.

Element 3 – Breach of duty

The pleaded risk

47. The risk that the defendant was required to address is pleaded at par 12 of Annexure A of the Summons as follows:

“The risk was the risk of workers, in particular Mr Spillane, suffering serious injury or death as a result of falling when working on a section of roof with no fall prevention systems in place, while undertaking work at the site.”

Particulars of the alleged failures

48. Paragraph 13 of Annexure A of the Summons particularises the reasonably practicable steps which the defendant should have taken to comply with its s 19(1) duty as follows:

49. Verify workers who accessed the external roof were working from a solid work platform or, if the use of such a platform was not practicable, that a fall prevention system was in place.

50. Enforce, by way of clear instructions or appropriate supervision, that workers did not access the external roof section to complete works unless or until appropriate safety measures were in place.

51. Provide adequate supervision to ensure workers were working in accordance with the ‘Safe Work Method Statement - Roofing Works at Hurstville Aquatic Centre’.

52. Provide Mr Spillane with information about the work including health and safety risks associated with work on the roof.

53. Provide Mr Spillane with appropriate instructions and training on how to perform the job safely.

54. Verify that other Harbour City workers were made aware of the skills, qualifications and experience of Mr Spillane.

55. Verify that Mr Spillane was not required to perform roof work that he did not have sufficient training or experience to perform safely.

56. Consult with Mr Spillane and the labour hire agency about any change in the scope of work he was required to perform.

Key factual considerations

49. SafeWork investigators obtained evidence from Mr Spillane, Mr Adam Simonovski (the Harbour City site supervisor) and Mr Tasker, as well as some key personnel from Bermagui and HLH.

Work environment at the site

50. Inspector Nigel Wood of SafeWork NSW attended the site on 9 February 2021. He took a number of photographs while he was present at the site that day and subsequently prepared a Factual Inspection Report.

51. There was nothing in place in the vicinity of the incident to prevent Mr Spillane falling, including on the roof that Mr Spillane had to walk across to access the area where he ultimately fell.

52. There was no edge protection or safety mesh underneath the roof soffit that Mr Spillane fell through. Nor were catch platforms or safety netting in place.

System of Work

53. Harbour City had a SWMS for roofing works at the site. It was dated 12 December 2020 and identified falls as a potential hazard. It identified a range of controls in relation to working at heights.

54. The defendant had a SWMS in relation to working at heights. It stated that workers were to read the SWMS upon site induction. The defendant asserts that Bermagui did not conduct inductions for its workers. In that respect, Harbour City asserts that Mr Schultz lost the defendant’s SWMS and did not provide it to workers at the time of induction.

55. Mr Spillane stated that he never saw a SWMS or any other documented procedures that provided guidance in relation to how to safely carry out the work he was doing.

56. Mr Tasker does not believe he was ever provided a SWMS in relation to working at heights at the site, though he stated that he could not be unequivocal in that respect.

57. It was manifestly inappropriate for the defendant to rely on Bermagui to provide training in relation to its own SWMS. In any event, no such training was provided to Mr Spillane. The question of training is addressed further below.

58. Mr Simonovski stated that workers from the defendant had installed the ladder in order to gain access to the relevant section of the roof.

59. Mr Simonovski said that he was working separately to Mr Tasker and Mr Spillane at the time of the incident, though his evidence indicates that he was aware that they were removing roof sheets at the relevant time. He indicated that he told Mr Tasker and Mr Spillane that they could perform the relevant work on the roof outside following an interaction with “the builder”. It should be noted that it appears that his response in this respect may have been limited to Mr Tasker; subsequently in his evidence, he stated that he did not tell Mr Spillane to work on the roof and did not see him on the roof at any stage.

60. In its s 155 response, the defendant makes the following comment regarding the works being performed at the time of the incident:

“Again, roof works were not to be conducted at this time. Darren Shultz told Phillip to follow up him up onot [sic] the roof to conduct work. This should not have happened. He also took Blake Tasker with him. Harbour city Roofing did Not instruct Philip to do any other work than what he was sent to do. Work inside.”

61. Contrary to the position advanced by the defendant, the evidence makes clear that Mr Simonovski was aware that at least Mr Tasker was engaged in the work being conducted at the time.

62. There were no fall prevention or protection measures in place at the time of the incident – the workers were not using a work platform or similar and there was no edge protection or safety mesh. Nor were the workers using a fall protection measure such as a harness – though, in circumstances where Mr Spillane had no working at heights training, such a measure would have been inappropriate in any event.

Training and supervision

63. Before beginning work at the site, Mr Spillane had completed a general construction induction. He had not worked on a roof before. He stated that he told this to Mr Simonovski. No one from Harbour City asked Mr Spillane whether he had completed working at heights training.

64. Mr Simonovski confirmed that he asked Mr Spillane if he had performed roofing works before and Mr Spillane said he had not. Mr Simonovski stated that he assumed that Mr Spillane did not have a working at heights qualification as a result of that interaction.

65. Mr Spillane gave further evidence in relation to communications with Bermagui regarding his experience working on roofs. He stated:

“No one from Bermagui asked me directly if I had experience on the roof. On the first day there were 3 labourers from HLH. We were on the roof with Adam from harbour city roofing. Darren from bermagui [sic] then proceeded onto the roof and said let’s get these 3 labourers started on the other side of the roof to which Adam replied they don’t know what they are doing”.

66. There is a conflict in the evidence as to whether Mr Spillane was given any induction at all. Mr Schultz of Bermagui stated that he did “a little bit of a verbal induction” with Mr Spillane.

67. Mr Spillane disputes this. He stated that he did not receive an induction on site.

68. Even if Mr Schultz’s account is accepted, it appears that Mr Spillane received no more than a perfunctory induction.

69. Mr Spillane was not provided any form of training directed to addressing work at heights either generally or at the site specifically prior to the incident.

70. Mr Tasker stated that he does not recall signing anything in relation to an induction. He indicates that he was asked to sign an electronic induction after the incident.

71. On the day of the incident, Mr Spillane stated that all the instructions he received were from Mr Tasker. There was “no one else present”.

72. Mr Spillane describes the instructions he received as follows:

“Unscrew the metal sheets on top of the roof. Cut black plastic and bring it on top of the roof.”

73. Mr Spillane was told to access the roof using a ladder but was not provided information in relation to where on the roof he should stand. Mr Tasker stated “I just assumed who [sic] saw what I, I was doing.”

74. Mr Tasker had conducted roofing work on and off for approximately four years prior to the incident. Mr Tasker had previously worked for the defendant though had ceased employment with it for a period of time before recommencing about a week prior to the incident.

75. Mr Tasker himself was not provided any training in relation to how to carry out the work.

76. Irrespective of whether Mr Tasker’s experience (in particular at the site) made him an appropriate person to be supervising an inexperienced worker such as Mr Spillane, it is clear that neither Mr Tasker nor any other representative of the defendant provided Mr Spillane with appropriate instructions or supervision having regard to his inexperience and the nature of the work being conducted.

77. At the time of the incident, Mr Spillane was performing work that he was not qualified or trained to perform. He did not receive adequate instruction in relation to the safety measures that should have been put in place, nor supervision to ensure that appropriate safety measures were implemented.

78. Mr Dylan Jenkins was the primary site supervisor for the defendant at the time of the incident. He was not on site on the day of the incident as he was attending a charity event.

79. As noted above, Mr Simonovski, who was the most senior representative of the defendant on site, was not supervising Mr Spillane at the time of the incident. Mr Spillane was being supervised by Mr Tasker.

80. The supervision afforded to Mr Spillane was manifestly deficient.

Scope of Works Issue

81. The work being undertaken by Mr Tasker and Mr Spillane as at the time of the incident was said by Bermagui to have been part of “Stage 2 Works” at the project.

82. There is a dispute in the evidence as to whether the defendant’s workers were following instructions from Bermagui at the time they were on the roof. Mr Tasker and Mr Spillane stated that they engaged in the work after being asked to do so by Bermagui. Bermagui contests this, asserting that it had not asked them to engage in the relevant work.

83. Mr Tasker stated that on the day of the incident “the builder took us outside to do another task”. Mr Tasker notes that Bermagui had given the Elevated Work Platform to some other workers. He then stated:

“So, I, I sort of said, what else is there to do? We can’t sort of sit here. And then he goes, there’s some stuff to do up on the roof, I’ll take you for a walk and show you. So we went for a walk around the roof and, um, just he pointed out all different areas of work that needed to be done and then I made a judgment call, because [Adam Simonovski] was inside doing other stuff, I made a judgment call, call on what was two blokes were able to get done, you know, in, in a day”.

84. Later in his interview, Mr Tasker confirmed that the person who provided these directions was Mr Darren Schultz from Bermagui. He and Mr Schultz walked on the roof together while Mr Schultz pointed out work to be done.

85. Mr Tasker indicated that he told Mr Schultz that he was going to do the relevant work. Mr Schultz is said to have showed Mr Tasker that the sheets needed to be replaced.

86. According to Mr Tasker, the requisite sheeting was already on site at the time of the incident.

87. Mr Spillane stated that Mr Schultz directly instructed him to get up on the roof:

“Yes he told me Adam [Simonovski] was working on the roof and to go up on the roof and work with him”.

88. Mr Schultz stated that it was agreed with the Council that Bermagui would try to push forward the Stage 2 works after the Stage 1 works. Stage 2 works were not started until March.

89. Mr Schultz indicates that he decided to take Mr Tasker up on the roof to show him the scope of works that needed to be completed.

90. Mr Schultz then stated:

“I proceeded to show all the work, all the scope of works for stage one and I showed him that this is the work that’s coming up for stage two, um, and I proceeded to show him the easiest route around to the back of the, of the, ah centre. I just showed him all the work that needed to be done….”

91. Mr Schultz asserted that he had never seen Mr Spillane or anyone else from Harbour City working on the external roof structure, other than the day about three weeks prior to the incident, when the relevant workers were told to stop.

92. Mr Schultz asserted that he did not know who made the specific decision on the day of the incident to work on the external section of the roof.

93. Mr Blaine Sheridan, who was employed by Bermagui as general assistant to the project manager (Mr Darren Sheridan), stated that he saw Mr Tasker and Mr Spillane between 8am and 9am working on the roof by the side entry to the pool. They were not wearing harnesses. After Mr Sheridan finished the task he was then performing, he went over to Mr Tasker and Mr Spillane’s location. He noted that they had moved off the roof and were on the ground at that stage. Mr Sheridan stated:

“I looked at them and said – you should not be on a roof without a harness or similar words. I did not know they should not have been on that roof at all so I did not say anything more. Blake said something like ‘yeah. Ok’.”

94. Mr Sheridan does not indicate that he told them they should not be working in the relevant location. His advice was confined to the use of harnesses.

95. The dispute in relation to whether Bermagui directed that the relevant works needed to be undertaken does not have to be resolved for the purposes of the proceedings against the defendant. Whether the work was undertaken at the request of Bermagui or not, Mr Simonovski the site supervisor was aware of it. The work was ultimately being performed by the defendant’s workers, including a worker who was engaged at the site as a roofer. To the extent the defendant was not aware that Mr Spillane (as opposed to Mr Tasker) was engaged in the relevant work, that absence of awareness was attributable to failures in its own supervisory processes.

Section 18 of the WHS Act: Reasonable Practicability

96. I turn specifically to the considerations in s 18 of the WHS Act regarding the assessment of what is reasonable practicability.

97. As set out earlier, the pleaded risk is as follows:

“The risk was the risk of workers, in particular Mr Spillane, suffering serious injury or death as a result of falling when working on a section of roof with no fall prevention systems in place, while undertaking work at the site.”

Likelihood of risk eventuating – s 18(a)

98. There is no doubt that the performance of work on a fragile roof without edge protection or safety mesh (or, failing that, catch decks or nets and/or harnesses) gives rise to a very significant risk with a high likelihood of eventuating.

Degree of harm – s 18(b)

99. There is equally no doubt that the potential harm that might arise from a fall from height in circumstances such as those in the present matter was severe.

Knowledge of the risk and means of reducing it – s 18(c)

100. The risk of falls from height in the context of construction work is notorious.

101. The requirement to manage the risk of falls, including the risk of falls from elevated workplaces and through openings, is specifically addressed in cll 78 and 79 of the Work Health and Safety Regulation 2017 (NSW) (the WHS Regulation).

102. Similarly, the means by which fall risks can be reduced or eliminated are well publicised. Indeed, cl 79(3) of the WHS Regulation itself specifies means by which a person is to provide and maintain a safe system of work in the context of fall risks.

103. There is extensive guidance material in relation to the management of the risk of falls at workplaces and in construction. Section 275 of the WHS Act provides that a code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the Act has been complied with. The Court is able to consider the relevant code as evidence of what was known about a risk or the measures available to control it, and may also rely on the code in question to determine what is reasonably practicable in the circumstances.

104. There is no doubt that the defendant was aware of the risk and of appropriate means of reducing it. So much is made clear by the Harbour City SWMS, which it prepared in relation to work at the site. However Harbour City failed to ensure that the SWMS was provided to workers and implemented. The Harbour City SWMS made provision for the conduct of a risk assessment in relation to the performance of work at height and the adoption of controls such as guard rails, scaffolding, catch platforms, safety mesh, or fall arrest systems as appropriate.

Availability and suitability of ways of eliminating or minimising the risk – s 18(d)

105. Each of the pleaded measures is one that was readily available to the defendant. Additional processes could easily have been instituted within the framework of the defendant’s existing business to ensure that appropriate steps were taken to properly understand the work being undertaken by its employees and, in turn, provide the training and supervision they were receiving in relation to that work.

106. There were mechanisms to mitigate the risk available on site at the time of the incident. Elevated Work Platforms were available on site. Appropriate measures were implemented in the wake of the incident. Harnesses were also available on site. Mr Spillane had not received any working at heights training, so it would not have been appropriate for him to be engaged in work requiring the use of a harness.

Cost associated with eliminating or minimising the risk – s 18(e)

107. There is nothing to suggest that the cost associated with the available ways of minimising the risk would in any way have been disproportionate to the risk.

Consideration: The Pleaded Particulars

108. Particular (a) is:

“(a) verify workers who accessed the external roof were working from a solid work platform or, if the use of such a platform was not practicable, that a fall prevention system was in place.”

109. The evidence makes clear that there were no safety measures in place at all to address the risk of a fall from height. Specifically, there were no prevention measures such as mobile or stationary work platforms, guardrails or safety mesh being employed.

110. Lower order fall protection measures such as fall arrest systems were not in place either, though given Mr Spillane’s lack of training in relation to such systems, the performance of the work using them would not have been appropriate.

111. Particular (b) is:

“(b) enforce, by way of clear instructions and/or appropriate supervision, that workers did not access the external roof section to complete works unless or until appropriate safety measures were in place.”

112. The defendant did not give instructions to Mr Tasker or Mr Spillane not to access the roof unless or until appropriate safety measures were in place. Mr Jenkins was not present at site on the day of the incident. Mr Simonovski, who was present, was aware of the work being conducted at least by Mr Tasker, if not Mr Spillane. He did not seek to prevent work occurring on the roof; indeed, the defendant had installed an A-Frame ladder to facilitate access to the relevant roof section.

113. Not only were appropriate fall prevention measures not in place, but there was no instruction or supervision given in relation to lower order safety measures such as the use of work positioning systems or fall arrest systems such as catch platforms, safety nets or individual fall arrest systems incorporating harnesses.

114. Particular (c) is:

“(c) Provide adequate supervision to ensure workers were working in accordance with the ‘Safe Work Method Statement - Roofing Works at Hurstville Aquatic Centre’.”

115. Mr Spillane was never provided with a copy of the Harbour City SWMS or given instruction or training in relation to it. At the time of the incident, he was being supervised by Mr Tasker. Mr Jenkins was not on site.

116. No efforts were made by those supervising Mr Spillane to ensure he was working in accordance with the Harbour City SWMS. It appears that Mr Tasker himself had not been provided a copy of the document.

117. Mr Simonovski was not supervising Mr Spillane at all at the time of the incident and asserted that he was not aware that he was on the roof. Even if Mr Simonovski’s account in that respect is accepted, it speaks to the manifest deficiencies in the system of supervision implemented by the defendant.

118. Particulars (d), (e), (f) and (g) are:

“(d) Provide Mr Spillane with information about the work including health and safety risks associated with work on the roof.

(e) Provide Mr Spillane with appropriate instructions and training on how to perform the job safely.

(f) Verify other Harbour City Roof workers were made aware of the skills, qualifications and experience of Mr Spillane.

(g) Verify that Mr Spillane was not required to perform roof work that he did not have sufficient training or experience to perform safely.”

119. Mr Spillane did not receive any information or training in relation to work on roofs or at height generally. Again, he was not provided a copy of the Harbour City SWMS and he was not qualified or appropriately trained to be engaging in roofing works.

120. Neither Mr Tasker nor Mr Simonovski provided Mr Spillane with specific instructions in relation to the work he was performing at the time of the incident. For example, Mr Tasker did not provide Mr Spillane with instructions in relation to where he should stand or not stand, but rather simply assumed Mr Spillane saw what Mr Tasker was doing.

121. Mr Tasker stated that he did not receive any instruction or training from Harbour City in relation to how to carry out the work safely.

122. The incident itself, in which Mr Spillane stepped on a roof soffit that was not capable of supporting his weight, speaks directly to his inexperience and the lack of information he received.

123. Particular (h) is:

“(h) Consult with Mr Spillane and labour hire agency HLH NSW about any change in the scope of work he was required to perform.”

124. There was no meaningful discussion with Mr Spillane prior to the commencement of his work on the roof in relation to any change to his duties.

125. HLH understood the scope of works for general labourers such as Mr Spillane to be general labouring and assistance with the cutting of roofing materials once they had been removed.

126. Consistent with this, HLH did not receive any communications at all from the defendant in relation to changes to Mr Spillane’s work prior to the incident. In turn, HLH was not aware that Mr Spillane was engaged in work at height at the site.

127. As a result, there was no potential for Mr Spillane’s employer HLH to provide further information to the defendant in relation to Mr Spillane’s lack of relevant training or experience, nor to assess the training provided to him or the safety associated with the work, nor to seek to arrange for relevant training to be provided.

Conclusion on Element 3

128. I find that the third element is also satisfied beyond a reasonable doubt. Mr Spillane was not qualified or trained in relation to roofing works or working at heights generally. He was not provided with any instruction or training in relation to the safe performance of the work, and there were no fall prevention measures in place at all.

Element 4: Exposure to Risk of Death or Serious Injury

129. Each of the pleaded failures was a significant or substantial cause of the risk to which Mr Spillane was exposed. At the time of the incident, he was engaged in work he was not qualified or trained to perform, that exposed him to a very significant risk of a fall from height.

130. Had measures of the type set out in the Summons been implemented, the risk faced by Mr Spillane would have been very significantly minimised.

Conclusion: Guilty

131. I find that all of the elements of the offence charged have been proved beyond a reasonable doubt. I find the defendant guilty.

Sentencing

132. 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

133. 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].

134. 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].

135. 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.”

136. 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].

137. 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.

138. 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.

139. 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.”

140. 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.”

141. 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.”

142. My findings about the defendant’s level of culpability are based upon the following:

143. The risk was actually known by the offender.

144. The likelihood of the risk occurring was significant, particularly as Mr Spillane had no experience in roofing work, and was given no instruction or training in such work.

145. The potential consequences of the risk were death or serious injury.

146. There were steps available to eliminate or minimise the risk, including those taken immediately after the incident.

147. There was little or no burden or inconvenience in implementing such steps.

148. The extent of the harm caused was a serious injury, which included a lengthy stay in hospital.

149. The maximum penalty for the offence is a fine of $1,782,579, which reflects the legislature’s view of the seriousness of the offence.

150. I find that the level of culpability of Harbour City is in the high range.

Deterrence

144. 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].

145. Specific deterrence is not a factor as Harbour City is in liquidation.

Aggravating Factor

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

Mitigating Factor

147. Harbour City has no record of previous convictions: s 21A(3)(e) CSP Act.

Parity

148. Bermagui and HLH were also prosecuted for a breach of their 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; SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604.

149. 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].

150. 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.”

151. 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.

152. It is appropriate for the court to consider the respective contributions of the defendant, 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].

153. I find that Harbour City was more culpable than either of the other two offenders. HLH faced a charge under s 33 of the WHS Act, not s 32. Its failures were much less culpable than those of Harbour City. Bermagui was the principal contractor, not the direct employer or supervisor of Mr Spillane. Again, the breaches of duty under the WHS Act, to which it pleaded guilty, were of a lesser order than the breaches of duty proved against Harbour City.

Costs

154. There will be an order that the defendant is to pay the prosecutor’s costs.

Orders

155. The orders of the court are:

156. Harbour City Roofing Pty Ltd (In Liquidation) is found guilty.

157. Harbour City Roofing Pty Ltd (In Liquidation) is convicted.

158. Order Harbour City Roofing Pty Ltd (In Liquidation) to pay a fine of $600,000.

159. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

160. Order Harbour City Roofing Pty Ltd (In Liquidation) to pay the prosecutor’s costs.

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