SafeWork NSW v Landmark Roofing Pty Ltd

District Court of NSW|2020-05-08

9] NSWIRComm 453; (1999) 101 IR 239 WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 Texts Cited: "Managing the Risks of Falls at the Workplace" dated April 2016. WorkCover Code of Practice (2009) "Safe Work on Roofs Part 1 - Commercial and Industrial Buildings" Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Landmark Roofing Pty Limited (Defendant) Representation: Counsel: M Moir (Prosecutor) P Barry (Defendant)

Solicitors: SafeWork NSW (Prosecutor) Moray & Agnew (Defendant) File Number(s): 2019/83648

The Issues

The issues to be determined are: 1. Was the defendant conducting a business or undertaking? 2. Did the defendant owe Mr Asser and Mr Dart a health and safety duty under s 19(1) of the WHS Act? 3. Did the defendant fail to comply with its health and safety duty by failing to take one or more of the measures particularised in par 12 of the Summons? 4. Did the defendant's breach of duty expose Mr Asser and Mr Dart to a risk of death or serious injury?

The Elements of the Offence

The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence. It is for the prosecution to prove the guilt of the defendant, and prove it beyond reasonable doubt.
Section 32 of the WHS Act provides: "A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness."
The elements of the s 19(1) offence are: Element 1 The defendant was conducting a business or undertaking. Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 2. while the workers were at work in the business or undertaking. Element 3 The defendant failed to comply with its health and safety duty. Element 4 The failure exposed an individual to a risk of death or serious injury.
Elements 1 and 2 were formally admitted by counsel for the defendant.

The Relevant Law

The objects clause in s 3 of the WHS Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (b) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection 19(1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
The offence is one of strict liability: s 12A of the WHS Act.
The content of the duty is set out in s 19 of the WHS Act which relevantly provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) 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. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) 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, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470.
The meaning of "worker" is dealt with by s 7(1) of the WHS Act. An employee is a "worker".
A duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act.
Section 16 of the WHS Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
Section 17 of the WHS Act deals with management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.
The word "risk" is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 at [67].
An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. A distinction must be drawn between the specific risk that manifested in the incident and the general class of risk on which the analysis must focus. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
"Reasonably practicable" is defined in s 18 of the WHS Act which provides: "In this Act, 'reasonably practicable', in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows or ought reasonably to know about; (i) the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak . Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]; (2001) 110 IR 57.
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) [1999] NSWIRComm 453; (1999) 101 IR 239.
A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80 at 85; Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 at [32].
A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practical to guard against it: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129].
The prosecution must prove that the act or omission of the defendant 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]; (2016) 93 NSWLR 338.
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Regard must be had to the scope and objects of the WHS Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]; (2011) 214 IR 373. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground Operations at [130].
Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the WHS Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.
Part 13 of the WHS Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38; Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [37]-[38]. The phrase "engage in conduct" is defined to include an omission: s 4 of the WHS Act.

The Summons

The particulars of the risk are set out in Annexure A to the Summons as follows: "The Risk 11. The risk was the risk to workers, in particular Mr Asser and Mr Dart suffering death or serious injury as a result of falling from height while working on the alcove roof (risk)."
The particulars of the defendant's failure to comply with its duty are set out in Annexure A to the Summons as follows: Particulars of the defendant's failure to comply with the duty under section 19(1) of the Act 12. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular of Mr Asser and Mr Dart, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate the risk; (a) Inspecting the alcove roof prior to the commencement of the skylight removal work to assess the fragility of the roof sheets and/or skylight; (b) Conducting a risk assessment of the specific skylight removal work being done on the alcove roof that would have identified the risk and the means, such as those identified at paragraphs (c) to (f) below, by which that risk could be eliminated or minimised; (c) Developing, implementing and enforcing a task-specific safe work method statement or safe work procedure for the specific skylight removal work on the alcove roof that addressed the risk and identified one or more falls arrest measures, such as the system set out at paragraph (d) below, to be implemented before any work on the alcove roof proceeded; (d) Requiring by direction and instruction the use of a fall restraint system comprising a harness, connected to a lanyard which in turn was connected to a static line in place at the roof level (the fall restraint system) when working on the alcove roof; (e) Instructing workers (including supervisors) not to work on the alcove roof unless they were using the fall restraint system; and (f) Supervising workers such that work on the alcove roof was stopped immediately if work was being performed without the use of the fall restraint system. 13. As a result of the defendant's failures, workers and in particular Mr Asser and Mr Dart, were exposed to the risk. 14. The fatal injuries sustained by Mr Asser were a manifestation of the risk."

Agreed Statement of Facts

The prosecutor tendered an Agreed Statement of Facts (PX 1) in the following terms:

Authority to bring Proceedings

SafeWork NSW being the regulator as defined by section 4 of the Work Health and Safety Act 2011 (the Act), is empowered under section 230(1)(a) of the Act to institute proceedings in this matter.

Background 2. At all relevant times Landmark Roofing Pty Ltd (ACN 108 495 923) (Landmark) was a registered corporation. 3. At all relevant times, the business or undertaking of Landmark was the installation of metal roofing on residential and commercial buildings. 4. Dean Beacher was the Managing Director of Landmark. 5. On 8 March 2018 Landmark employed at least two workers being a 20 year old apprentice roof plumber Brayden Asser (Mr Asser) and Douglas Dart (Mr Dart) who was the supervisor of Mr Asser for the work being done that day. 6. Mr Asser was approximately nine months into the first year of his apprenticeship with Landmark. 7. Mr Dart had been working with Landmark as a roofer since approximately Christmas 2017 and had in the period since then supervised up to 17 or 18 workers at various sites at which Landmark had been engaged. 8. As Supervisor Mr Dart provided direction for the roofing work being done by Mr Asser. 9. Landmark was engaged by Benedict Recycling Pty Ltd (Benedict Recycling) which occupied a commercial building at 1A McIntosh Drive, Mayfield West in the State of New South Wales (the site). Landmark was engaged to replace the fire-damaged and storm-damaged roofing on the main shed of the site. 10. The roof of the main shed consisted of solid corrugated material, and also incorporated a skylight within part of its roof structure. The skylight was made of polycarbonate sheeting. 11. The work being done at the site commenced earlier than 8 March 2018 and consisted of replacing approximately 2000 square metres of damaged roof sheeting on the main shed of the site. As at 8 March 2018 most of that work had been done. Landmark was approached by Benedict Recycling and requested to replace the storm damaged skylight in the roof of the main shed of the site. There was approximately one day's work involved in this additional task.

The incident 12. On 8 March 2018, Mr Dart and Mr Asser were on the roof and were working on the replacement of the broken skylight (the work). 13. The work was being done by Mr Dart and Mr Asser with Mr Dart supervising Mr Asser. The work involved disconnecting and uplifting the old polycarbonate skylight sections and replacing them with new metal sheeting and screwing them down. The work involved being physically on the roof and close enough to reach, unscrew, and uplift the old skylight sections prior to their replacement. 14. At approximately 10.49am on 8 March 2018, Brayden Asser fell through a section of the polycarbonate skylight of the roof at the site. 15. He fell approximately six metres from roof level to a crane rail while attempting to replace one of the skylight sections of the roof. 16. As he fell, he struck his head on a steel crane rail inside the building and his legs became entangled in the rail causing him to be suspended upside down for a period before being rescued.

Injuries 17. Mr Asser died in hospital as a result of a stroke nine days after the incident.

Inspector Sheerin

Inspector Sheerin attended the premises where the incident occurred at 12.30pm on 8 March 2018. He took a statement from Mr Ross Senior, the Supervisor of Benedict Recycling. He took a statement from Mr Douglas Dart, a Supervisor employed by the defendant. This statement is referred to in detail below. These statements were recorded in his note book, which was tendered as part of PX 2, Tab 3.
Inspector Sheerin issued a Prohibition Notice to Mr Dean Beacher, the Director of the defendant. This was issued at 2.30pm on the day of the Incident. At 3.15pm that same day he "complied" the Prohibition Notice, which means that the notice was lifted as Inspector Sheerin was satisfied from material provided to him, that the defendant had complied with the Prohibition Notice.
On 9 March 2017 Inspector Beacher emailed a further Prohibition Notice to the defendant. Later that morning he emailed a copy of the Inspection Report to Mr Beacher and to Mr Dayne Steggles (the Site Manager of Benedict Recycling). He obtained a copy of the drone footage taken by NSW Police Rescue.
On 13 March 2018 Inspection Sheerin contacted Mr Beacher by telephone to inform him that he would be issuing an Improvement Notice to review the Safe Work Method Statement (SWMS) used at the time of the incident. A copy of this Improvement Notice was sent by email to Mr Beacher.
On 15 March 2018 Inspector Sheerin received by email from Ms Nicole Beacher a copy of a revised SWMS. Having read that document, Inspector Sheerin "complied" the Improvement Notice based on the information contained in the revised SWMS.

Existing SWMS

The SWMS in force at the time of the incident, dated 12 February 2018, was tendered by the prosecution (PX 2, Tab 15.1). It was prepared by Mr Beacher for Benedict Recycling. It stated that the Site Supervisor was Mr Dart. In the list of legislation and Codes of Practice referenced in the SWMS was the Code "Managing the Risks of Falls at the Workplace" dated April 2016.
The SWMS set out the following step by step sequences: 1. General items. 2. Access to roof. 3. Movement and materials to roof level. 4. Installation of safety mesh (prior to perimeter scaffold installation). 5. Installation of safety mesh (after perimeter scaffold installation). 6. Installation of roofing. 7. Installation of flashings, guttering and downpipes. 8. Roof demolition.
The SWMS Register was signed by six persons, including Mr Asser, Mr Senior and Mr Dart.

Revised SWMS

The revised SWMS, issued as a result of the Improvement Notice was tendered by the prosecutor (PX 2, Tab 14). This listed nine step by step sequences instead of eight. The additional step was "2. Roof inspection". This was set out in the SWMS as follows: Step by step sequence Hazards Risk and rating for each step Safety Controls that will be in place to minimise these hazards/risks Risk and rating for each step after Control in Place Responsibility Inspection of existing roof for fragile roof surfaces, such as Asbestos roof sheeting Polycarbonate roof sheeting ● Visual inspection by competent person, such as an experienced tradesman/supervisor to ascertain if there are any fragile roof surfaces.
Roof Inspection Fibreglass roof sheeting 1 ● If fragile roof surfaces are detected, further inspection will be required to determine if safety mesh has been installed to AS/NZS 4389;2015 Roof safety mesh and in accordance of manufacturer's instructions. Condition of safety mesh will need to be inspected by competent person. 3 Site Supervisor Rooflights & Skylights ● If fragile roof surface is only detected in small portion of roof area where persons maybe working, isolation of that area will be required in the form of barricading, or timber walkways of a suitable size and strength over fragile roof area labelled with warning. Fibre cement sheeting Metal roof sheeting & fasteners where corroded

Step 9 "Roof demolition" was the same as Step 8 in the pre-incident SWMS. In relation to the hazard "Internal fall" both SWMSs said: "● Restraint techniques should only be used if it is not reasonably practicable to prevent falls by providing a physical barrier. ● Fall restraint - Operate from fall restraint system as a priority in replace of a fall arrest system. ● Fall restraint - Controls the workers movement by physically preventing the person reaching a position at which there is a risk of a fall. ● Fall restraint - Consisting of a harness that is connected by a lanyard to either a temporary anchor, permanent anchor or horizontal lie line. It must be set up to prevent the wearer from reaching an unprotected edge. ● Fall arrest - A fall arrest system is intended to safely stop a worker falling an uncontrolled distance and reduce the impact of the fall. ● Fall arrest - This system must only be used if it is not reasonably practicable to use a fall restrain system. ● Temporary height safety equipment (harness, lanyard etc) is required to be inspected on a 6 monthly basis. Permanent height safety equipment (permanent anchor points, static lines etc) are required to be inspected on a yearly basis. ● All height safety equipment is deemed redundant and unfit for use after 10 years from the date of manufacture. ● Builders Working at Heights Permit to be satisfied prior to the commencement of any fall restraint/arrest works commencement."

Inspector Farmer

Inspector Farmer went to the incident site at 12.30pm on 8 March 2018. Two statements from Inspector Farmer were tendered (PX 2, Tab 2 and Tab 4). Also part of Tab 4 was a copy of Inspector Farmer's note book.
Photographs taken by Inspector Farmer were included in his report at Tab 2. These photos were annotated. Figure 3 is a photograph looking from ground level to the inside of the shed. The translucent skylight through which Mr Asser fell is indicated in the photograph. There was no roof safety mesh underneath the translucent plastic roof sheeting or the adjacent metal roofing. Figure 4 is a close-up photograph, taken from underneath, of the translucent roof sheeting. There is a hole in the sheeting, through which Mr Asser had fallen.
On the concrete floor of the main shed Inspector Farmer saw a section of yellow and black harness. The webbing of the harness had been cut and it was incomplete. There was no shock absorbing device attached to the section of harness. Figure 6 in the report is a photograph showing where the harness remnant was found. Figure 7 was a close-up photograph of part of the harness. It shows a red plastic tag attached to a metal ring, in turn attached to the harness webbing. Two yellow labels on the harness said "Fall Arrest attachment point. Both loops must be connected". The loops to which the labels were fixed were connected by a metal carabiner.
Inspector Farmer observed a large number of pieces of broken translucent roof sheeting lying on a waste pile in the middle bay of the alcove to the shed. On top of the waste pile was an angle grinder and a cordless drill. There are also two black tool belts. Figure 8 is a photograph showing these items in situ on the waste pile in the shed. It also shows the masonite sheet, onto which Mr Asser was placed during the rescue operation.
Adjacent to the masonite sheet Inspector Farmer saw two pieces of a fall arrest harness. The webbing had been cut in several areas. Figure 9 is a photograph showing where the harness remnants were situated on the waste pile adjacent to the masonite sheet. On the north side of the waste pile Inspector Farmer observed a broken piece of translucent sheeting which appeared to be of a size and shape consistent with the hole in the roof above. This was shown in Figure 10.
Figure 12 in Inspector Farmer's report was a photograph taken from an Elevating Work Platform (EWP) of the top of the roof. Various items found on top of the roof were labelled in the photograph. The hole in the sheeting is clearly visible. Figure 13 is a photograph of the top of the roof which shows one rope line attached to a static line. Running from the static line the rope loops out towards the edge of the roof and then loops back towards the ridge line. Indicated on the photograph is a "Traveller", also called a "Rope Grab". In par 33 of his report Inspector Farmer said: "I observed a rope attached to the ridge static line. The rope appeared to be attached using a carabiner and was laid out on the roof towards the gutter line before looping back towards the ridgeline. There appeared to be a number of stoppers or 'stopper knots' in the rope. There appeared to be a 'rope grip' or 'traveller' attached to the rope. There was no visible absorber device fitted to the roof access rope."
In his oral evidence Inspector Farmer explained, by reference to Figure 13 in PX 2, Tab 2, p 18 that from the Rope Grab one could see a short length of rope running down the roof towards the gutter. He described this as a "lanyard".
The other report of Inspector Farmer (PX 2, Tab 4) dealt with the confiscation by Inspector Farmer of sections of the cut fall arrest harness, and the chain of custody thereafter.
A series of photographs taken by Inspector Farmer was contained in PX 2, Tab 6. These photos were labelled and placed against a horizontal and vertical grid reference. Photograph number 6 shows "rope lanyard attached to static line".
More photographs are contained in PX 2, Tab 7. The static line can clearly be seen, looking from the floor of the shed up through the roof vent on p 21 and p 22 of Tab 7. The loop of rope, the Traveller and the lanyard attached to the Traveller can most clearly be seen at p 24 of Tab 7. There is a close-up photograph of the hole in the polycarbonate sheeting at p 27.

Inspector Halcroft

The evidence of Inspector Halcroft was contained in her statement tendered as PX 2, Tab 5. Inspector Halcroft attended the incident site at 2.20pm on 8 March 2018. She issued a s 171 Notice to the defendant for training and induction records for Mr Asser, the SWMS for the task being undertaken at the site, and records of toolbox meetings for the week commencing 5 March 2018. The Notice was served on Mr Beacher.
Inspector Halcroft also issued a s 171 Notice to Benedict Recycling for induction records for Landmark Roofing workers and toolbox meeting records for 8 March 2018. This Notice was served on Mr Steggles, the Newcastle Recycling Manager.
On 9 March 2018 Inspector Halcroft received the documents requested from Ms Nicole Beacher and from Mr Steggles.
On 12 March 2018 Mr Beacher delivered the fall arrest rope, complete with a Rope Grab and a carabiner, to the SafeWork NSW office at Carrington. A receipt was issued for the rope and accessories. It was secured in the evidence locker.
On 5 April 2018 Inspector Halcroft interviewed Mr Dart. The interview was recorded and transcribed.
On 5 April 2018 Inspector Halcroft interviewed Mr Beacher. The interview was recorded and transcribed.
On 11 April 2018 Inspector Halcroft issued a s 155 Notice to the defendant requiring answers to questions and documents. On 24 April 2018 Inspector Halcroft received an email response to the s 155 Notice from Mr Beacher.
On 16 May 2018 Inspector Halcroft interviewed Mr Ross Senior, the Shed Supervisor of Benedict Recycling. The interview was recorded and transcribed.
Inspected Halcroft also obtained material from the NSW Police.

Recorded interview with Mr Beacher

The recorded interview between Inspector Halcroft and Mr Beacher held on 5 April 2018 was tendered as PX 2, Tab 9. Mr Beacher said that he was the Managing Director of the defendant. He said his responsibilities were quoting, ordering materials, labour for the jobs and "all the ins and outs of running a company, I guess". Mr Beacher had been a Director of the defendant for about 13 years. The business of the company was metal roofing.
Mr Beacher said that the job being done by the defendant at Benedict Recycling was re-roofing a fire-damaged building roof. There was about 2000 square metres. The job involved removing all the damaged materials from the roof, painting the purlins for rust prevention, installing a new roof and installing mesh. Work commenced in about the second week of February 2018. The building was about 50 years old.
The existing damaged roof was "a very hard plastic material". It was a "deleted product". That roof had no mesh underneath it. The roof had "what we call a super six profile, which is, uh, extremely high ribs and very rigid material". Mr Beacher described it as a "trafficable roof".
Damaged material was removed using an EWP. There were two such machines on site. A crane was used to drop packs of new sheets at three or four locations on the top of the roof. There was a static line already up at the ridge line of the roof "which the guys were hooking their arses onto".
Mr Beacher said at Q50 that once the sheets were dropped: "….. they got a few sheets down and they had a decent deck to work off, uh, then it was over to the bloke, who was down at the gutter line at the bottom of the roof, who was using his rope and the other two, which was six metres and twelve metres away from the edge, were working 'unhooked up'." (emphasis added)
Mr Beacher was asked at Q52 how the defendant assessed the risk involved in doing that. He said: "Well, uh, I'd been over there and quoted the work and, uh, well, we used a work method statement, which was already there. Um, a kind of generic one. It was a very similar job to what we'd been doing recently on other words. Um, so we used the same work method statement from another job. Um, and it was, obviously had a new heading on it and things like that and, and created for that job, using a template of an old work method statement."
Mr Beacher said that the work replacing the skylights was being done right at the end of the job. That work commenced on 8 March 2018. Mr Beacher said that he spoke to his "foreman" Doug, and said: "Well, once we've done this section here, we need to go down there and do that, that skylight part down there".
Mr Beacher was asked about any discussion about the brittle nature of the skylights and working near them. The interview recorded the following questions and answers. "Q61 O.K. So was there any discussion about the brittle nature of the skylights and working near them? A Wouldn't say there was a, a real discussion. Um, I mean, because we do the thing every, every day, I, I really didn't have a discussion about it with Doug or anything. I just said, 'Well, this is, this is what we need to do'. Q62 Ah mmm. A 'We're going to use some leftover metal sheets' - Q63 Ah mmm. A - 'to go down there, pull the old fibreglass sheets out and put metal sheets in'. And that would be, that was the end of it. Oh, well, that's all the discussion there really was about it, I guess. Q64 So do you know how they went about it? A Um, well, from what I'm led to believe, um, they were, apparently they were using their harnesses. They'd gone down, walked across the roof, uh, and they'd already repaired one section of the skylight. Um, and they were, yeah, they were just unscrewing the old ones, pulling the old skylights out and slipping a new metal sheet up and under them and screwing it down. Q65 Mmm. A Um, that's really all I'd, I know about it side of it, I guess."
Mr Beacher was asked specifically about the polycarbonate skylights. The questions and answers were as follows: "A68 Mmm. And the skylights? The polycarbonate? A Polycarbonate, we've done plenty of that type of stuff. Q69 Ah mmm. A Uh, removing and replacing, installing new, um you know, what I know of the rules around it, you got to have safety mesh underneath it--- Q70 Mmm. A --- um, when you're installing new. When it's existing, um, you can't really put safety mesh underneath it without taking the old one out. Um, uh, and I guess, you know, I could say, it, it's, it's not a everyday thing we do, but, you know, we might get - depending on different times of the year, sometimes you might have two or three jobs in that month that might have, um, fibreglass sheeting or polycarb sheeting in it. Um, sometimes we might go two months and not do a job with it in it, but, um, it's definitely something, you know, we do regularly --- Q71 Mmm. A --- just, you know, when, when and those jobs arise, I guess. Q72 Mmm. And it's particularly brittle once it's old. A Correct."
Mr Beacher was asked about the experience of Mr Asser, and the safe method of working around brittle roof materials. The questions and answers are as follows: "Q97 Yep. O.K. Um, and what was he, as far as you know, what was he told about brittle roofing materials? A Oh, obviously, you take care with those and, uh, and have your harness on. A 98 Ah mmm. A That's, that's a, a given. Um, whether, even if there is a handrail or a scaffold there, if there's a, you know, a brittle roof or something like that, you, they'd have harness on. Definitely. Q99 Ah mmm. A Yep. And then all of their tradesmens and, and all the guys working around him would be, you know, doing the same and they'd be encouraging him to do that. Then, you know, they, they take a young guy under their wing, you know, and treat them like their, like a brother, sort of a thing. It's a very, yeah, our company, I don't know about any other companies, but our company's very, um, oh, well, family orientated, I guess. I mean, we all, we're like a football side. We're a team. We work together. Q100 Ah mmm. A Um, and you've got a captain who's, you know, the foreman or tradesman on the job, you know, steering the team around. Um, they're very close-knit. Um ---."
Inspector Halcroft showed Mr Beacher a photograph taken of the top of the roof which showed only one rope attached to the static line. Having been shown this photograph, the questions and answers were as follows: "Q112 There's only one rope. A O.K. Q113 So, really, you, in working with a skylight, they both should've been hooked up. A Oh, I agree. Q114 Mmm. O.K. How often had Brayden used fall restraint? A Oh, quite a lot. Q115 Yeah? A Yeah. Q116 So he understood how it worked and - A Yep. A117 Yep. O.K. A Yep. 100 percent, he did, yep. Q118 Yep. And Doug was his supervisor? A Correct. Q119 Do you have any idea why he unhooked his lanyard? A Only from what I've been told, that, uh, I asked Doug as soon as I got to site what's happened, how did this happen. And he said that they were working there, he was hooked up. He's got Brayden to go across the roof, get some more metal sheets to bring over. Q120 Ah mmm. A Uh, and when he's come back, he hasn't hooked up. Um, Doug's, um, asked him to lift the top of the sheet, so he could slide the new sheet underneath. Q121 Ah mmm. A And when he's done so, he's stood back and gone through a fibreglass sheet. Q122 Mmm. A So, obviously, he hasn't hooked up when he's come back or ---."
Mr Beacher did not give oral evidence and he was not required for cross-examination. He was present in the virtual court throughout the trial.

Statement made by Mr Dart to Inspector Sheerin

Inspector Sheerin recorded the statement made to him by Mr Dart in the third person. After describing work done earlier on the morning of the incident, Mr Dart said of the work regarding the skylights: "Doug detached his rope from his harness that was attached to static line with turn buckles that was fixed along the east side of the roof. Brayden detached as well. Doug did not tell Brayden to detach, he just copied what he (Doug) did. Both workers went to get the metal roof sheet which was approximately 30m south on the roof. Proceeded back to patch area with roof sheet. Both workers had not re-attached at this point. Doug asked Brayden to lift up the top of the plastic sheet to slide the metal roof sheet under it. Brayden has gone to straddle the plastic sheet therefore feet either side and whilst doing this his left foot has been placed on the skylight sheet that was quite brittle and then he fell."
There was no challenge to Inspector Sheerin to suggest that he had not correctly understood and recorded what Mr Dart had said to him on the day of the incident. The version given by Mr Dart is at odds with photographs taken on the day, and contradicts his later statement to Inspector Halcroft and his oral evidence. The version taken by Inspector Sheerin causes me to doubt the credibility of Mr Dart generally.
Mr Dart told Inspector Sheerin, in effect, that both workers had been working on the roof while roped onto the static line. However, the oral evidence of Mr Dart was that when they were working on the first skylight, Mr Dart was roped on but Mr Asser was not. Photographs taken on the day of the incident show that there was only one rope on the roof attached to the static line and one Rope Grab on that rope. There can be no suggestion that at some stage both workers were roped onto the static line by one rope. For this to happen, there would need to be two Rope Grabs on the single rope, but the photographs quite clearly show that there was only one Rope Grab attached to the single rope. The evidence given by Mr Dart in other statements was that the second rope was left in the utility down at ground level and was never brought up onto the roof.
That part of the statement of Mr Dart to Inspector Sheerin, where the inspector recorded Mr Dart as saying that Mr Asser detached his rope when they were at the second skylight, but that Mr Dart had not told him to detach the rope, is clearly a fabrication. The evidence shows that Mr Asser was never provided with a rope at all on the day the incident happened. The evidence also shows that even the one rope that was on the roof was used (if at all) only by Mr Dart when he was working near the first skylight.
The statement made by Mr Dart to Inspector Sheerin on the day was clearly intended by Mr Dart to be exculpatory, and was clearly a deliberate misstatement of what had occurred on the roof. For that reason I can place very little credit in anything that Mr Dart said, either to Inspector Sheerin, later to Inspector Halcroft, or in his oral evidence.

Recorded interview with Mr Dart

The interview conducted by Inspector Halcroft with Mr Dart was put into evidence as PX 2, Tab 8. Mr Dart said that he was a roofer who had been employed by the defendant for about eight months. He had been supervising a few jobs from around Christmas 2017. Sometimes he supervised 17 or 18 workers and at other times there was only one worker. The job at Benedict Recycling was to replace about 800 square metres of burnt and damaged roof sheeting. The job also involved running repairs on damaged skylights.
Work had started about a month before 8 March 2018. Most of the time it was only Mr Dart and Mr Asser working on the roof. At most there were four employees there and then only for a couple of days. Mr Dart had worked together with Mr Asser for about eight months for the defendant. Mr Dart was aware that Mr Asser was in the first year of his apprenticeship.
The first task was to remove the burnt roof sheeting using an EWP. This was done from underneath. Mr Dart was told roughly half way through the job that eventually they would need to fix the skylights that had been damaged. This was a little job which was going to be done at the end.
The damaged skylights were replaced as follows. Firstly they were removed. Then new sheets were patched in. Mr Dart said that he and Mr Asser hooked their ropes to a harness and then to the static line, which was part of the building when the defendant arrived to commence work. There were not two ropes, but only one rope going to the static line. Mr Dart was connected to the rope when he was taking out the first skylight. When Mr Dart and Mr Asser were laying the sheets they were not hooked up at all, as they were walking the sheets 30 metres across the roof before putting them in. Mr Dart said that they could not hook up to do that task. He said he did have "more stuff in the ute that I could've used".
Mr Dart said that there were two kinds of plastic material on the roof. There was the polycarbonate skylight material but the rest of the roof was made of "this plastic stuff". Mr Dart had never encountered that material before. They walked on that material "a fair bit being harnessed up". He found it to be "very structurally sound". He was aware that there was no mesh underneath the roof.
Mr Dart was asked about replacing the skylights. He said that first he removed the skylights that were damaged. Mr Asser was then screwing part of the roof that had been laid the day before. The sheets that were going to be put in to replace the skylights were about 30 metres south of where the old skylights were. Mr Asser passed the sheets over to Mr Dart because "they were on the other side of the ridge and then we carried them down and installed them into where I removed the old skylights".
Mr Dart was pulling up the edge of the sheeting to enable the new sheeting to be slid underneath it. Mr Asser went to lift the top sheet and he swung his left leg over and landed on the skylight. His weight transferred to his left leg causing him to fall through the skylight.
The interview concluded as follows: "Q89 Why wasn't he hooked up? A Do you think I'd like to go back and change that? Q90 Yeah. But do you know why he wasn't hooked up? A It was just, he just comfortable up there and --- Q91 Oh. A Obviously you never expect anything like this to happen. Q92 That's probably as much as I need from you, Doug. A It's bloody confronting seeing these photos."

Oral evidence of Mr Dart

Mr Douglas Dart was a roof plumber by trade. He was the defendant's supervisor on site. He was working on the roof with Mr Asser when the incident occurred. He gave oral evidence that he had been the supervisor on one previous job. This was a large school job. Being made a supervisor was not a promotion, as there was no pay increase but there was more work to do. At the public school job Mr Dart had been supervising 17 or 18 workers. He reported to Mr Beacher. He was then 26 years old. Mr Dart had worked at the job at Benedict Recycling for about a month before the incident occurred. He was shown the Benedict Recycling Visitor Register (PX 2, Tab 17.1) and agreed that his first day on the job was 13 February 2018. He worked with Mr Asser on every day of the job. Mr Beacher was not on site every day. He came to the site from time to time to update himself on the progress of the job.
A Toolbox Talk was held every morning. It discussed the scope of works, changes in the heavy machinery on site, exclusion zones to keep Benedict Recycling's machinery separate, and the weather. The daily Toolbox Talk included Mr Ross Senior, who was the Benedict Recycling Supervisor. Mr Dart and Mr Asser were there for the Toolbox Talk every day. Mr Beacher was there for some of the Toolbox Talks.
Mr Dart said that he had worked with Mr Asser for about eight months before the incident. They worked together every day on a previous job, and prior to that a couple of times a week. He described Mr Asser as one of the best workers he had worked with.
Mr Dart was taken to the defendant's SWMS which was in existence at the time of the incident (PX 2, Tab 15.1). He acknowledged that he had been through the SWMS and signed off on it. He had some input into developing SWMS. He described it as a generic document which was then customised for each site. Benedict Recycling also had some input to the document and made improvements to it.
Mr Dart gave evidence about what happened on the day of the incident. He and Mr Asser had been replacing damaged roof with Colorbond roof. They were replacing the existing plastic sheeting roof. He had been told about the need to replace the skylights a few weeks before the day of the incident. This was a small part of the job. The instructions given to him by Mr Beacher were to remove the plastic sheeting and replace it with Colorbond.
Mr Dart was taken to the photograph at PX 2, Tab 7, p 23. The yellow sheets on that photograph were the skylight. He had already replaced one skylight with Colorbond sheeting. Mr Dart said that he had worked with polycarbonate skylight material many times before. It was a very common material. The plastic sheeting which formed the bulk of the roof at Benedict Recycling was a material he had only seen once before.
Mr Dart had been involved in the prior inspection of skylights. He said that when one was on the roof you could clearly see where the skylights were. You could also see them from underneath. He was asked whether there was any inspection done to assess whether the skylights were brittle or fragile. Mr Dart said that he had just assumed that they would be extremely brittle. He said that even if they are brand new you cannot walk on polycarbonate sheets used for skylights. He assumed that they were brittle from his past experience. That experience had included noticing that when the polycarbonate sheets turn yellow, they are extremely brittle. He had removed one skylight on the roof working with Mr Asser and found that he could pull it apart with his hands.
Mr Dart was taken to the photograph at PX 2, Tab 7, p 24 which showed the harness rope. He said that there was a shock absorber on the rope which is in the shadows and which is hard to see. He said that the rope in the photograph was meant to be attached to the safety harness. Mr Dart said that he removed all of the first damaged skylight when he was attached by the rope to the static line. He removed the screws on the skylight. Mr Asser helped get sheets from the other side of the roof and carry them over to the damaged skylight area. Mr Dart and Mr Asser had already replaced three sheets of skylight material on the first skylight.
The incident occurred when they were working on the fourth sheet, which was to replace the damaged second skylight. Neither of them had any fall restraint attached when replacing the first three sheets. They had their harnesses on, but they were not connected by a rope to the static line. Mr Dart said that only one person could connect to a single rope. He did not go down and get a second rope, although there was a second rope in the work vehicle on the ground below. Mr Dart acknowledged that neither worker had any fall restraint in place when they were replacing the fourth sheet i.e. the first sheet to be replaced on the second skylight.
In answer to the question as to why he was not connected to the static line, Mr Dart frankly said: "We should have been hooked up".
Mr Dart was asked how the actual incident occurred. He said that Mr Asser was lifting a sheet up and Mr Dart was kneeling down. He was intending to slide the Colorbond sheet underneath. Mr Asser moved his foot from the left side of the sheet to the right and he then put his foot on the skylight. Mr Asser had been facing towards the skylight then swung his leg around to face the gutter line. It was his left foot which was put onto the polycarbonate sheet, which failed. Mr Asser fell through the skylight. Mr Dart tried to grab him and he saw him fall down. Mr Dart ran to the side of the roof and got to the ground level. Mr Dart pointed to a drill next to the hole where Mr Asser went through the skylight. He said that he was standing there near the drill, on a Colorbond sheet about a metre away from the skylight and the hole.
Mr Dart was asked by counsel for the prosecutor whether he had been instructed by the defendant not to work on the roof unless he was using a safety rope at all times. Mr Dart said that he was so instructed. He said that such instruction was in the SWMS and was mentioned in the Toolbox Talks. He said that in discussions with the group Mr Beacher had said that wearing a harness was compulsory when working on that roof. The workers always had to be hooked up. Mr Dart said that this was discussed at the start of the job during preparation for it. At the Toolbox Talk each day the use of the harness rope as an important feature of the job was discussed between Mr Dart, Mr Asser, Mr Beacher (when he was present) and Mr Senior.
I do not accept the evidence of Mr Dart that Mr Beacher had said that wearing a harness was compulsory when working on the roof and that workers always had to be hooked up. I have already recited that part of Mr Beacher's interview with Inspector Halcroft. In that interview Mr Beacher said that a worker at the gutter line would use his rope but the other two workers who were 6 or 12 metres away from the edge, were working "unhooked up". Mr Beacher knew that this was going on and Mr Dart knew that this was going on.
Mr Dart was pressed as to when Mr Beacher was there before the incident. Mr Dart said that he thought that Mr Beacher was there on the Saturday before the incident. It was then that they spoke about removing and replacing the skylight sheets. There was no direction given at that stage to use the rope to do the job of replacing the skylight sheets. Mr Dart said that the direction to use the static line and rope was one given at the start of the job i.e. a few weeks before the incident.
In cross-examination three documents were tendered. The first was a TAFE Certificate III in Roof Plumbing awarded to Mr Dart and dated 2 February 2014 (DX 1). The second document (DX 2) was a Work Safely At Heights Card dated 8 August 2016 of Mr Dart.
The third document was a SWMS of the defendant relating to a previous job being Woodberry Public School (DX 3).

Recorded interview with Mr Senior

Inspector Halcroft interviewed Mr Senior on 16 May 2018. Mr Senior said that he was the Site Supervisor employed by Benedict Recycling on 3 March 2018. His job was to oversee the supervision of shared activities. This included ensuring that people were using safe work procedures, co-ordinating activities of machinery, doing risk assessments and general supervision.
Mr Senior inducted Mr Dart and Mr Asser into the defendant's SWMS, as revised, on 12 February 2018. Inductions were performed with each person coming onto the site to work. Contractors who came onto site had to produce copies of their licences. Mr Senior reviewed the defendant's SWMS and then issued a Working At Heights Permit. Mr Senior and Mr Steggles, of Benedict Recycling, reviewed the defendant's SWMS and discussed changes they proposed. Not everyone was present on the start date. Mr Asser started on the next day, when he was inducted into the SWMS and signed it.
Mr Senior was asked how Benedict Recycling ensured that contractors adhered to their SWMS. He said that he went through the documentation and "then just through the supervision".
Mr Senior had observed the defendant's roofers working on the southern end of the building wearing harnesses and fall restraints. The restraint ropes were attached to the static line which ran along the ridge line of the shed. This was a fixed line which was in place prior to the work done by the defendant.
Mr Senior was present in the shed and heard the sheeting crack. He saw Mr Asser falling down into the shed. He was involved in the rescue operation to recover Mr Asser, who had become tangled in fixed beams which were some distance above ground.
Mr Senior was asked whether the defendant could have used an EWP to replace the skylights. He said that while he was not a roofer, he did not think that an EWP could have been used to replace the skylight sheeting.
Mr Senior was asked to identify the defendant's SWMS current at the time of the incident, and also to identify the Benedict Recycling meeting record for 8 March 2018. The meeting record (PX 2, Tab 10, pp 41-43) shows that the meeting was held at 7.00am in the lunch hut. It was attended by Mr Senior, Mr Dart and Mr Asser. Item 4 discussed was "PPE" and the meeting record on that item stated "site specific and job specific".
Mr Senior also identified the Benedict Recycling Working At Heights Permit issued on 8 March 2018 (PX 2, Tab 15.5, pp14-15) for the main shed. The task for which the permit was issued was "replacing/removing fire damaged sheeting". One of the "Foreseeable Hazards" noted on the permit was "slips/trips/falls". The controls listed on the permit included safety harness, lanyards, and attachment points. The permit does not specifically refer to replacing the skylights.
The permit was issued to Mr Dart who accepted it by certifying the following matters: "I am aware and understand my responsibilities in relation to the work detailed in this permit. Permit requirements have been explained to all personnel undertaking the work. I understand that a toolbox talk and form must occur at the beginning of this work. I will report any hazards, incidents and accidents to the supervisor or manager immediately."
Mr Senior signed the permit to certify the following matters: "I have personally inspected the work area for this task and verify that pre-work requirements have been met. I have checked the competencies of the persons performing the above scope of works. I have reviewed and authorised the risk assessment for this scope of work."
Mr Steggles signed as the Site Manager for Benedict Recycling. He certified: "I have checked the competencies of the persons performing the above scope of works."

Oral Evidence of Mr Senior

Mr Senior commenced working for Benedict Recycling in November 2017. As the Site Supervisor he dealt with contractors, which included inducting them to the site. In February 2018, just before the defendant commenced work on the roof of the main shed, Mr Senior reviewed the defendant's SWMS. Mr Steggles of Benedict Recycling was also involved in that review.
The initial induction of Mr Dart and Mr Asser to the site was done by another employee of Benedict Recycling. Mr Senior obtained copies of the EWP and the Working Safely At Heights documentation for Mr Dart and Mr Asser.
Mr Senior and Mr Steggles had made handwritten alterations to the SWMS (PX 2, Tab 10, pp 9-32), to make it more suitable for the Benedict Recycling site. The alterations on the document in blue pen were made by Mr Senior and the alterations in black pen were made by Mr Steggles.
Mr Senior signed the defendant's revised SWMS on 12 February 2018, which was the day he looked at it and revised it. The sign-in register for the site showed that Mr Dart and Mr Asser came to the Benedict Recycling site and signed in on 13 February 2018 (PX 2, Tab 17.1, p 2). Mr Asser also signed the SWMS on that date (PX 2, Tab 10, p 37). Each worker who later came to the site was inducted into the amended SWMS.
After work started Mr Senior recalled Mr Beacher attending frequently to observe the work being done. Mr Beacher was there for some of the Benedict Recycling Toolbox Talks.
On the day of the incident Mr Senior recalled a Toolbox Talk attended by Mr Beacher, Mr Dart, Mr Asser and himself. Mr Senior said the following about that Toolbox Talk: 1. There was no discussion about the fact that an EWP was not going to be used to do the skylight work. 2. There was no discussion about the nature of the skylight material. 3. There was no discussion that the skylight was made of different material to the roof. 4. There was no discussion about reviewing the SWMS. 5. There was no discussion about whether there would need to be an inspection to assess the skylight material. 6. There was no discussion about a new risk assessment being done. 7. There was no discussion that workers should not work on the alcove roof without being hooked up onto the rope.
I found Mr Senior to be an impressive witness. He gave his evidence in a forthright fashion. He had no reason to be anything but frank and open about the events leading up to the fall of Mr Asser.
However, I find that Mr Senior was mistaken in his recall that Mr Beacher also attended the Toolbox Talk held between Mr Senior, Mr Dart and Mr Asser on the morning of the incident. Firstly, the minutes of the Toolbox Talk were tendered, and they record three participants but not Mr Beacher. Secondly, the sign-on register does not record Mr Beacher coming to the site early in the morning on the day of the incident. Thirdly, Mr Beacher said in his statement that he was not on site when the incident occurred and that he only attended the site after he was advised about the incident. He was not challenged about this. I find that Mr Senior's recollection that Mr Beacher was at the Toolbox Talk on the morning of the incident is inaccurate.
However, I accept the rest of his evidence because it accords with the contemporaneous documentation, and I was impressed by the forthright and dispassionate way in which Mr Senior gave his evidence. I thought that he was trying to do the best to recall what happened on the job and on the day of the incident. In particular, I accept the evidence of Mr Senior, summarised in par 125 above, about the topics not discussed at the toolbox talk on the morning of the incident.

Findings of Fact

I have been relieved of the need to make detailed findings of fact in this matter because of the tender of the Agreed Statement of Facts (PX 1) and the fact that there was little or no cross-examination of witnesses in relation to their recollection of what happened.
I have already indicated the credibility findings I have made in relation to Mr Dart and Mr Senior.
I record the following findings of fact. They are largely in accordance with the prosecutor's Written Submissions (MFI 3). Counsel for the defendant focussed his submission on matters of law and did not dispute the findings of fact put forward by counsel for the prosecutor.
The defendant specialised in metal roofing installation on commercial and residential buildings. In February 2018 the defendant was contracted to replace the roofing on a commercial building at waste recycling premises operated by Benedict Recycling at 1A McIntosh Drive, Mayfield West in Newcastle.
The work involved the replacement of a large area of fire-damaged roof sheeting at the southern end of the building. The defendant used EWPs to remove the burnt sheeting and to install safety mesh under the new roofing to be installed. The employees of the defendant then installed new Colorbond sheeting on the roof above the mesh. This work had been completed by the time of the incident.
Before work commenced at the site the defendant put forward a SWMS which had been adapted from earlier similar jobs. The SWMS was discussed with Mr Senior and Mr Steggles of Benedict Recycling, and both gentlemen made suggestions and changes to the SWMS. However, the SWMS which was created as a result of these discussions made no reference to specific roof inspections to determine whether there was brittle and thus dangerous material on the roof.
Mr Douglas Dart was the supervisor for the defendant on the site and he worked with Mr Brayden Asser, a 20 year old who was in the first year of his apprenticeship with the defendant. They removed the burnt and damaged sheeting and erected safety mesh underneath the roof area. This work was done using EWPs. Mr Dart and Mr Asser were the people who did most of the work for the defendant at the site.
During the course of the work Benedict Recycling asked Mr Beacher, the Managing Director of the defendant, to also replace damaged skylights. These skylights were situated in an extension of the roof which was known as the "alcove".
The damaged skylights were of a polycarbonate material and were yellow in colour. To Mr Dart, who had had some experience with this sort of material in the past, the yellow colour indicated that the polycarbonate was old and brittle. There was no evidence that Mr Asser knew this and there would be no expectation that a first year apprentice would necessarily know this.
Mr Dart and Mr Asser were working on the last day at the site, and replacing the skylights was the last part of the work they did.
There were two skylights that needed replacement. Mr Dart and Mr Asser worked to replace the first skylight with metal roof sheeting, without incident. They were working on the second skylight when the incident happened.
Mr Dart and Mr Asser were wearing safety harnesses, but they were not roped onto a static line which ran along the ridge line of the shed. There was only one rope on the roof at the time. This was attached to the static line, but not attached to either worker. There was one Rope Grab on the rope which could have been used to attach the rope to one safety harness. There was a second rope but this had been left at ground level in the work utility. There was no safety mesh installed underneath the second skylight which was being repaired.
Mr Asser went to lift up the sheeting immediately next to the skylight so that Mr Dart could slide the new sheeting underneath it. Mr Asser swung his left leg over the skylight and stepped onto it. The skylight material was brittle. As he transferred his weight to his left leg the skylight cracked and he fell through it suffering fatal injuries.
In response to an Improvement Notice, the defendant revised its SWMS, to include a new section which required inspection and identification of brittle skylight material.

Element 1 - The defendant was conducting a business or undertaking

Element 1 is admitted by the defendant.

Element 2 - The defendant owed a health and safety duty

The prosecution must prove that the defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; and 2. while the workers were at work in the business or undertaking.
Element 2 is admitted by the defendant.

Element 3 - Did the defendant fail to comply with its health and safety duty?

Element 3 is not admitted by the defendant.
A number of factors are relevant to whether the defendant failed to comply with its health and safety duty.
Firstly, the nature of the risk is straight-forward and obvious. The risk was the risk to workers, in particular Mr Asser and Mr Dart, suffering death or serious injury as a result of falling from height while working on the roof.
Secondly, the likelihood of the risk occurring was high if the defendant failed to take adequate precautions to eliminate or minimise the risk. The alcove roof was 11 metres above ground level. There was no safety mesh beneath it. The skylights in the roof were already damaged and fragile. They were made from old and brittle polycarbonate material, which could easily crack if stepped upon.
Thirdly, the degree of harm that could eventuate was serious. Any fall from that height is likely to be fatal, or at very least cause serious injuries.
Fourthly, the risk was obvious. It was a risk outlined in the guidance material. The WorkCover Code of Practice (2009) entitled "Safe Work on Roofs Part 1 - Commercial and Industrial Buildings" (the Code) (PX 2, Tab 20) specifically referred to the risk of falling through brittle or fragile roofs and skylights. The Code specified the ways of eliminating or minimising the risk.
Fifthly, the risk was known to the defendant. Mr Beacher admitted that skylights made from polycarbonate were brittle (Exhibit PX 2, Tab 9, Q 72). Further, the task of removing the skylights was "high risk construction work" as that term is defined in cl 291 of the Work Health and Safety Regulation 2017 (NSW), because it involved "a risk of a person falling more than two metres".
I accept the submission of counsel for the prosecutor that the change of activity in moving from removing the quite strong existing plastic roof sheeting, and placing mesh underneath it, to replacing brittle skylight material, with no mesh underneath it, required the defendant to look again at its existing safety procedures before the skylight removal work commenced.
I also accept the submission made by counsel for the prosecutor that it was readily foreseeable that two young workers may have become complacent through working on the roof without incident for several weeks. Mr Beacher knew that his employees had been working on the roof without being roped up on prior occasions.
I accept the submission made by counsel for the prosecutor that the risk was also increased due to the young age and experience of the two workers. Mr Dart was only 26 years old and while he had been a roofer for some time, he had only been a supervisor for a short time. Mr Asser was a particularly vulnerable worker. He was 20 years old and was a first year apprentice. He was in training and was not a qualified person.
I turn to consider the various particulars pleaded in par 12 of the Summons. The prosecution relies upon six matters said to have been particulars of the defendant's failure to comply with its duty under the Act to ensure, so far as is reasonably practicable, the health and safety of workers.
Looking at each particular in isolation is liable to lead to error. For example, an inspection of the roof is not a step which by itself minimises the risk. A PCBU needs to make a risk assessment as a result of what is found upon inspection. That risk assessment should lead to the creation of a task-specific SWMS. But even if a SWMS is created, a piece of paper per se does nothing to minimise risk. A SWMS needs to be implemented and enforced. Workers, particularly young and inexperienced workers, need to be trained to recognise the risk and follow the newly specified procedures to minimise the risk. Then there needs to be observation and supervision to ensure that safety is being observed.

Particular 12(a) - Inspection of the Roof

Particular 12(a) in the Summons is: "Inspecting the alcove roof prior to the commencement of the skylight removal work to assess the fragility of the roof sheets and/or skylight."
There is no evidence that there was any specific inspection and assessment of the skylight area of the alcove roof before Mr Dart and Mr Asser started to remove and replace the skylights.
The initial inspection of the roof by Mr Beacher was only in the context of quoting for the job, rather than being a safety inspection. The request by Benedict Recycling for replacement of the skylights came during the course of the works, and some weeks after the initial inspection. Thus the initial inspection only considered the removal of the corrugated plastic sheeting, installation of metal sheets and installation of safety mesh.
While there was a Toolbox Talk on the morning of the incident, this was not attended by Mr Beacher, but was attended by Mr Senior, Mr Dart and Mr Asser. I accept the evidence of Mr Senior, which was completely unchallenged, that there was no discussion at that meeting concerning the nature of the skylight work, the skylight material or any particular risks posed by that material. There was no discussion of any safety precautions to be taken in doing the skylight removal work.
The existing SWMS made no reference to the need for specific inspection of the skylight material. There was no attempt to comply with the Code which required identification of any brittle or fragile skylights. It is not enough to say that Mr Dart had experience with brittle polycarbonate material in the past, so he knew not to step on it. A formal inspection of the roof was but one step in a proper approach to safety. The inspection would have identified the risk, which should have led to a revised or task-specific SWMS, which in turn should have led to the induction of Mr Asser into the new SWMS. By such steps Mr Asser would have been alerted to the danger and trained and instructed in how to avoid it.

Particular 12(c) - Developing, Implementing and Enforcing a Task-Specific SWMS

Particular 12(b) in the Summons is in the following terms: "Conducting a risk assessment of the specific skylight removal work being done on the alcove roof that would have identified the risk and the means, such as those identified at paragraphs (c) to (f) below, by which that risk could be eliminated or minimised."
Particular 12(c) in the Summons is as follows: "Developing, implementing and enforcing a task-specific SWMS or safe work procedure for the specific skylight removal work on the alcove roof that addressed the risk and identified one or more falls arrest measures, such as the system set out in paragraph (d) below, to be implemented before any work on the alcove roof proceeded."
The evidence is all one way. There was no risk assessment done in relation to the skylight removal work, even though the material from which the skylights were constructed was radically different from the hard plastic roof sheeting which had been removed. The skylight material was quite unsafe, compared to hard plastic roof sheeting.
The Code referred to risk assessment and said that consideration had to be given to the adequacy of current knowledge and training to perform the task safely. The Code specifically said that account had to be taken of the fact that "young, new or inexperienced workers may be unfamiliar with a task". (Exhibit PX 2, Tab 21, p 8)
The SWMS in effect at the time of the incident did not speak at all about the task of replacing the skylights. This is not surprising, as the original job was only to replace the damaged hard plastic roof sheeting and the SWMS had been adapted from a previous job. The request to replace the skylights was made several weeks into the job and was not the subject of a separate risk assessment or SWMS.
Being high risk construction work, the defendant had an obligation to prepare a SWMS for such work - cl 299 of the Work Health and Safety Regulation 2017 (NSW).
The existing SWMS made no reference to the adequacy of the knowledge or the training of the workers, particularly Mr Asser who was a first year apprentice. The SWMS did not take account of the fact that there was a young inexperienced apprentice on the roof, who may have had no understanding whatsoever of the danger posed by brittle skylight material.
Further, it is alleged that any new SWMS or safe work procedure should identify one or more falls arrest measures. The post-incident revised SWMS did identify appropriate falls arrest measures. I have already held that there was no discussion about the brittle nature of the skylight material before the incident. Had such a discussion taken place, it should have precipitated a risk assessment or a task-specific SWMS.
Further, there is no evidence that there was a clear procedure in place for the workers to be hooked up by the rope to the static line at all times while they were doing the skylight removal work. Even Mr Dart was not hooked up at the time of doing the second skylight work.

Particular 12(d) - Direction and Instruction to use a Fall Restraint System

Particular 12(e) - Instructing workers not to work on the roof unless they were using a Fall Restraint System

Particular 12(d) in the Summons is as follows: "Requiring by direction and instruction the use of a fall restraint system comprising a harness, connected to a lanyard which in turn was connected to a static line in place at the roof level (the fall restraint system) when working on the alcove roof."
Particular 12(e) in the Summons was as follows: "Instructing workers (including supervisors) not to work on the alcove roof unless they were using the fall restraint system."
I have already indicated that I accept the evidence of Mr Senior that there was no discussion at the Toolbox Talk held on the morning of the incident that people should not work on the alcove roof without being hooked up onto the rope. Mr Beacher in his Record of Interview made no reference to giving a specific instruction that the ropes were to be used during the skylight removal work. Mr Dart did not say that there was a specific discussion about using the rope fall restraint system when doing the skylight work.
I have already rejected Mr Dart's assertions that he was instructed to always use the rope fall restraint system when working on the roof. I have also rejected his assertions that he and Mr Asser were hooked up at all times, except when the incident occurred. The answer of Mr Beacher in his Record of Interview, to the effect that the workers were unhooked at times, indicates that that was not so. Further, Mr Dart was not hooked up to the rope system at the time of the incident, or when moving about on the roof to shift the roof sheets into position. Finally, the existence of only one rope on the roof on the day of the incident shows that there was no enforced direction or instruction that workers could only work on the roof if they were hooked up by the rope to the static line.
There was no clear direction and instruction to use the fall restraint system when working on the alcove roof. There was no instruction not to work on the roof unless workers were using the fall restraint system.
While these matters may have been mentioned in the original SWMS, it was a procedure observed in the breach, and on the very day when the incident occurred, it was not even practicable for both workers to be hooked up by ropes to the static line, as there was only one rope was on the roof.
It is not enough to have a procedure written down in an SWMS. Further vital steps are required - discussion with workers, induction into the SWMS, training in the SWMS procedures, re-iteration of safety procedures at toolbox talks. All of these steps become even more vital when there is a change in the nature of work and a change in the nature if the risks involved in work - such as occurred when the work changed from working on a stable solid roof surface to working near a fall hazard such as a brittle skylight with no safety mesh underneath it.
Further, Mr Beacher and Mr Dart were aware that there was no mesh under the skylight material and everyone was aware that Mr Asser was a young first year apprentice - in other words, a person for whom extra care should have been taken. I accept the submission made by the prosecutor (MFI 3, par 76) that the particular circumstances of each worker may be relevant to show the need for instruction and supervision of young people or trainees, when such instruction and supervision may not be required for other more skilled and experienced workers.

Particular 12(f) - Supervising Workers

Particular 12(f) in the Summons is as follows: "Supervising workers such that work on the alcove roof was stopped immediately if work was being performed without the use of the fall restraint system."
There is no explanation why Mr Asser was allowed to work on this roof without using the fall restraint system. There is no explanation as to why there was only one rope on the roof and not two, so that it was impossible for both workers to be roped onto the static line when doing the work during that entire morning.
It was reasonably practicable for Mr Asser to have been the subject of adequate supervision. Mr Dart was given that responsibility. It had been delegated to him by Mr Beacher on behalf of the defendant. The failure of Mr Dart to supervise Mr Asser adequately was the failure of the defendant - s 244 of the Act.
I find that Element 3 has been proved by the prosecution beyond reasonable doubt. I find that the defendant failed to comply with its health and safety duty. I find that each of the particulars in par 12 of the Summons, being particulars of the reasonably practicable steps which could have been taken to eliminate or alternatively minimise the risk, were not taken by the defendant but should have been taken by the defendant.

Element 4 - The failure exposed an individual to a risk of death or serious injury

I find that the exposure of Mr Asser and Mr Dart to the risk was causally connected to the breach of duty by the defendant. The particular failures of the defendant to comply with its duty are set out in the judgment above. Those acts or omissions of the defendant were a substantial or significant cause of Mr Asser and Mr Dart being exposed to the risk of injury - Bulga at [127], [130]. Counsel for the defendant submitted that the actions of Mr Dart were not attributable to the defendant. I reject that submission. Section 244(1) of the Act provides: "For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
Mr Dart had been placed on the roof by the defendant to carry out work himself, but more importantly to supervise an inexperienced apprentice. He was carrying out that work within the actual or apparent scope of his employment. He was not off on a frolic of his own, to borrow a phrase from another area of law. Even if he was carrying out an authorised act in an unauthorised manner, his conduct is imputed to his corporate employer by force of s 244(1) of the Act.
Counsel for the defendant submitted that the actions of Mr Dart were not foreseeable. I reject that submission. Authorities in relation to the duty imposed by the Act show that employers must take steps to guard against complacency and the failure of workers to follow safety procedures. Further, there was evidence in this case from Mr Beacher himself that he had seen his workers on the roof before when they were not hooked up. Apparently he said nothing when he saw that. Mr Dart was on this job every day so he too must have been disobeying any direction not to work without fall protection when Mr Beacher made his observation.
I find that the conduct of Mr Dart, in failing to properly supervise Mr Asser, was foreseeable and it was reasonably practicable to guard against that possibility. I have also found that there was no risk assessment or revised SWMS for the distinctly different task of removing the brittle skylight material. Those failures exposed Mr Asser to the risk of death or serious injury.
I find that Element 4 has been established by the prosecution beyond reasonable doubt.

Conclusion

I find that the defendant committed a Category 2 offence pursuant to s 32 of the Act because: 1. the defendant was conducting a business or undertaking; 2. the defendant owed a health and safety duty to Mr Asser and Mr Dart to ensure, so far as was reasonably practicable, the health and safety of those workers; 3. the defendant failed to comply with its health and safety duty; 4. the failure exposed Mr Asser and Mr Dart to a risk of death or serious injury.
I find the offence set out in the Summons proved beyond reasonable doubt.
I will hear the parties on Sentence.

Orders

My orders are: 1. The elements of the offence set out in the Summons filed on 18 March 2019 have been proved beyond a reasonable doubt. 2. I find Landmark Roofing Pty Limited guilty of the offence. 3. I will list the matter for a Sentence Hearing on a date convenient to the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2020

Work Health and Safety Regulation 2017(NSW)

[1998] NSWIRComm 200

[1999] NSWIRComm 453

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