SafeWork NSW v Lewin Roofing Pty Ltd

District Court of NSW|2021-11-08|Before: Mr J

Solicitors: Mr J O'Connell, Department of Customer Service (for the Prosecutor) Mr M Bryan, Morrissey Law + Advisory (for the Defendants) File Number(s): 2020/349382

Judgment

On 9 August 2021, Lewin Roofing Pty Ltd ('the defendant') entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act'), being a person conducting a business or undertaking who had a duty under s 19(1) of the Act, to ensure, so far as reasonably practicable, the health and safety of workers while the 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 workers, including Thomas Sheather and Josh Henry to a risk of death or serious injury.

LEGAL OBLIGATIONS AND GUIDANCE MATERIALS

Clause 78 of the Work Health and Safety Regulation 2011 (NSW) ('the Regulations') provides that duty holders must manage the safety risks associated with a fall, including openings through which a person could fall. Clause 79 sets out the specific requirements to minimise the risk of a fall, and includes:

Use of a fall prevention device if reasonably practicable to do so; or
If not reasonably practicable to do so, providing a work positioning system; or
If not reasonably practicable to comply with either of the above, provide a fall arrest system, so far as is reasonably practicable; and
Fall prevention devices include edge protection and covers (cl 79(5)).

The work being carried out was 'high risk construction work' within the meaning of clause 291 of the Regulations. As such, the duty holders were required to prepare a SWMS for the work that specified hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and describe the measures to be implemented to control the risks, and describe how the control measures are to be implemented, monitored and reviewed (cl 291(3) of the Regulations).
An extensive amount of additional guidance material was available and is described at [34]-[37] of the Agreed Statement of Facts.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

The defendant did not carry out a risk assessment for the roofing works which specifically identified the risk of a fall through a skylight, assess the risk and apply the most effective control measures to manage the risk.
Mr Lewin said prior to the incident, no discussion with Carrick occurred around the risks associated with the skylights. Mr Lewin believed using harnesses would provide adequate protection against a fall through the skylights. Both the defendant and Carrick had determined the use of harnesses to be a suitable control for the risk of falls through the roof.
No other controls for fall prevention such as the installation of protective covers over the skylights or edge protection were implemented by either the defendant or Carrick. The defendant had the ability to either implement these measures themselves or to require Carrick to do so, and to prohibit workers from undertaking work on the roof if such requirements were not met.
Harnesses were not suitable for the task of carrying roof sheets as the use of at least one hand was required to operate the harness while moving around the roof and the task of carrying the roof sheets required both hands. This means workers could not operate the harness and carry roof sheets at the same time.
The Carrick SWMS, which the defendant's workers signed, was generic and not site-specific and only identified the main hazards as slip, trips and falls and working at heights. The SWMS identified the risk of falls from height as likely to happen with major consequences.
In respect of the task of stacking and securing materials, the SWMS identified the risk of a fall and specified the following controls: 'Training in working at heights, all workers to have the correct footwear for walking on the roof … use a fall arrest system, scaffolding or edge protection as a safety barrier, always remain behind guardrails …'.
The SWMS did not identify the risk of a fall through the skylights or set out any control measures for the risk. It was open to the defendant to develop and implement its own SWMS for the work which included the required controls, or to check the Carrick SWMS included the required controls.

SYSTEMS OF WORK AFTER THE INCIDENT

The defendant did not undertake any further work at the site after 18 March 2019.
The admitted failures of the defendant are set out at paragraphs 11(a)-(d) of the Amended Summons.

SENTENCING

The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.
The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: '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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater 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 upon an assessment of all those factors.'
His Honour further observed at [42]: '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 pressure event of the force 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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The following matters are relevant to determining the culpability of the defendant: 1. The risk of a fall through one of the four skylights on the roof was an obvious and foreseeable one; 2. The potential consequences of the risk were catastrophic and included a risk of death. Mr Sheather fell approximately 6.6m. Carrick's SWMS, adopted by the defendant, assessed the risk of falls from height during the task of installing insulation and roof sheets as being 'likely to happen with major consequences, such as extensive injuries'; 3. An adequate risk assessment would have identified the gravity of the risk and the need to implement controls and protection against it; 4. The defendant gave no consideration to how the risk ought to have been managed. The defendant resolved to use harnesses as a means to control the risk of falls. Nor did they consider how the particular tasks were to be carried out on the roof, such as carrying roof sheets which could not be practically undertaken using harnesses. Mr Lewin was on site, had inspected the roof, and therefore had an opportunity to inspect the work area, identify hazards and assess risks prior to the work commencing; 5. When Mr Lewin left the site, he assumed that Mr McLeod was supervising - the defendant's duty is non-delegable; 6. As a specialist roofing business, the defendant ought to have reasonably known about the risk and ways of managing it; 7. The likelihood of the risk materialising was reasonably high in circumstances where it was not adequately controlled. There was also a substantial chance that workers could trip when carrying a roof sheet given the uneven surface of the roof and the stacks of materials placed upon it. The risk manifested a very short period of time after the workers commenced working on the roof; 8. Carrick was the principal contractor of the job, and the defendant was simply called in to replace the roof sheeting. It was Carrick that had erected the scaffold. Carrick had control of the site; 9. There were simple, straightforward steps which could and should have been taken to avoid the risk - there was little, if no, costs associated with the steps; and 10. The extent of Mr Sheather's injuries were significant. As at 30 January 2020 Mr Sheather had no capacity for work, some 10 months after the accident. He was only 23 years of age at the time of the accident.
Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the Act is considered in the context of the graduation of offences contained in ss 31-32 of the Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];
The availability of steps to eliminate or minimise the risk: Ibid [53];
Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [53];
Whether the risk was known or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

DETERRENCE

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … '[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in an industry that necessitates the need to work at height and simultaneously carry heavy roof sheets.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
General deterrence is necessary to heighten and focus the attention of companies engaged in the building and construction industry. The risks associated with falls through fragile roof surfaces, skylights and unguarded penetrations are extremely well known and glaringly obvious.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. I note that the defendant continues to perform the same work as it did when the incident occurred, however, I accept that the defendant has changed its ways, and if a project is offered that is beyond its capabilities, it will not be accepted.
I accept that the prospects of rehabilitation of the defendant are good, but the need for an element of specific deterrence is still necessary in these circumstances.

AGGRAVATING FACTORS

The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).
It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Sheather was tragically, seriously injured and has been left with significant impairments that will no doubt trouble him for the rest of his life. He may never return to the workforce. Mr Henry was also exposed to the risk, but fortunately was not injured.

MITIGATING FACTORS

The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.
The defendant entered a plea of guilty on 9 August 2021, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.
I accept that on the basis of what is contained in the affidavit, which is unchallenged, that the defendant is of good corporate character as evidenced by the assistance given to charity and individuals from time to time: S 21a(3)(F) of the Sentencing Act.
The defendant filed an affidavit of the sole director of the company sworn by Jamie Lewin.
I accept from Mr Lewin's affidavit that the defendant is focused on increasing safety and compliance with its work health and safety obligations since the incident. I note that the defendant is a small operation with only a handful of employees or contractors. In the months leading up to the incident, whilst Mr Lewin was operating this small family company, he was under significant family stress. Mr Lewin does not offer this information as an excuse, but as to why he was less attentive than he ought to have been and was not on site at the time of the incident.
I accept that the circumstances of this incident have had an impact on Mr Lewin personally and professionally. He is now seeing a psychologist due to the fact that what occurred is weighing on him, and he has shown introspection and taken responsibility.
I also accept that since the accident, Mr Lewin has implemented marked changes in the way the defendant now operates. Mr Lewin now does site inspections, and is very conscious to ensure that any penetrations are covered. He has undertaken additional training and retained assistance from an independent consultant in work health and safety.
This is, to my mind, a matter where there are strong subjective factors that loom large. For reasons as detailed above, and noting that the defendant is a small family company, operating and employing a few workers in a small rural community, the change of the defendant re-offending is low and the prospects of rehabilitation are good.
I also accept that the incident has had a significant impact on Mr Lewin, and has weighed heavily upon him.
Paragraph 101 of the affidavit demonstrates the defendant's contrition and remorse. This is reinforced by the fact that Mr Lewin offered assistance to Mr Sheather and his family after the incident. I accept that the defendant has acknowledged its failings and is updating its SWMS and risk assessments. I note that Mr Lewin has indicated that he will not pass his safety obligations to his workers on to anyone else, as he accepts that he is not permitted to do: Section 21A(3)(i) of the Sentencing Act
I also note that Mr Lewin has acknowledged that if he was to contract onto another job with a larger head contractor, he would ensure that the defendant's systems were utilised for his employees rather than relying on the larger contractor for the health and safety of the defendant's employees on site. Moreover, the defendant has made a conscious decision to not accept work where the resources of the company may not be able to meet the duties imposed by the Act. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
The defendant entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
I accept that this is a very strong subjective case, and propose to afford the defendant leniency on that basis.

CAPACITY TO PAY

Section 6 of the Fines Act 1996 (NSW) provides as follows: '6 CONSIDERATION OF ACCUSED'S MEANS TO PAY In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.'
The onus is on the defendant to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of any penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]: 'The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): 'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.' [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): '... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).' However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty … When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...' [85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: 'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.''
The material tendered by the defendant demonstrates that it has some capacity to pay a fine, and the defendant, to its credit, concedes that. But the documents do show that the company is a small husband and wife enterprise without extensive means. Furthermore, I accept that any fine will significantly impact the circumstances of Mr Lewin and his young family, and for that reason I propose to afford the defendant leniency on that basis.
The appropriate fine for the defendant is $180,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $180,000.00, and that will be reduced by 25% to reflect a plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $135,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs, agreed in the sum of $25,000.00.

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: 21 December 2021

Work Health and Safety Regulation 2011(NSW)

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