SafeWork NSW v LJW Solar Pty Ltd

District Court of NSW|2022-10-13

ial Fall Arrest Systems and Devices) SafeWork Australia's SafeWork on Roofs Information Sheet, January 2016 SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces (August 2019) WorkCover NSW Safe Work on Roofs Code of Practice, Part 1, Commercial and Industrial Buildings 2009 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) LJW Solar Pty Ltd (Defendant) Representation: Counsel: Mr N Read (for the Prosecutor) Mr M Shume (for the Defendant)

Solicitors: Ms S Hedger, Department of Customer Service (for the Prosecutor) Mr G McCann, Colin Biggers & Paisley Lawyers (for the Defendant) File Number(s): 2021/00342818

The Risk

On 7 January 2020, a risk to health and safety existed at the workplace, that being the risk of workers suffering serious injury or death as a result of falling from the perimeter edge of a building whilst undertaking solar panel installation work: Amended Summons at [10].

Background

The defendant is a business involved in the installation and repair of solar panel systems for commercial and residential properties. It was engaged to install an interactive solar electricity system at a newly constructed single-storey childcare centre ('the building') in Schofields, NSW ('the site').
Preparatory work had been done at the site in October 2019 and on 6 January 2020. At all material times, the defendant employed nine workers to undertake roofing works, including Aaron Wilson ('Mr Wilson'), Mr Kahane, Mr Brownen, Mr Gallagher, Mr Covi, Luke Williams ('Mr Williams') and Brent Geeves ('Mr Geeves'). Shannon Coleman ('Mr Coleman') was employed as Site Supervisor/Leading Hand and was responsible for supervising overall work at the site. Mr Brassington was employed as Roof Works Supervisor and was responsible for supervising works on the roof.
The building's roof had four pitched sections connected in the middle by a flat section. It had a gutter line approximately 3.5m high and eleven skylights. There were no permanently fixed anchor points, perimeter edge protection or fall prevention devices.
The defendant set up an access point at a pitched section of the roof, requiring workers to move across the pitched roof to reach the working area in the flat section. The access point was an extension ladder tethered by an L-foot bracket and ratchet strap. L-foot brackets were also used as temporary anchor points for harness ropes in the area and as a fixed anchor to which the traveller rope was attached.
The solar electricity system was to be installed on the roof by drilling 'L-foot' brackets into the roof, mounting a rail system onto the brackets, and mounting solar panels onto the rail system. The L-foot brackets and rail system were structurally designed to support frames and solar panels weighing approximately 20kg, and not manufactured or designed to withstand the force applied to them as a result of a person's fall.

The Incident

At approximately 7:30am on 7 January 2020, the defendant's workers arrived on site. Mr Coleman ran a pre-start meeting, which included a Job Safety Analysis ('JSA') that identified hazards as working on a steep roof, slipping, and rain. The JSA was signed by all workers, and it noted that 'we will be using PPE [Personal Protective Equipment] to lower risk of falling'. It did not discuss how to access and egress from the roof. Mr Coleman, as the qualified electrician, advised the workers that he would work on the inverter at ground level.
Mr Brassington, Mr Kahane, Mr Brownen, Mr Gallagher and Mr Covi accessed the roof. Only Mr Kahane and Mr Brownen clipped onto the traveller rope when climbing the ladder and traversing the pitched roof. Mr Brassington did not attach his harness to the traveller rope or to the temporary anchor point in the working area.
It began to rain lightly. Mr Covi instructed Mr Gallagher to return to the ground. Mr Gallagher made his way down the pitched roof towards the ladder on his hands and knees. The traveller rope and the rope grab were out of reach. As he approached the ladder, Mr Gallagher slipped and fell approximately 3.5m to the concrete below. An ambulance was called and Mr Gallagher was admitted to Westmead Hospital.
As a result of the fall, Mr Gallagher suffered a T12 burst fracture and a left interior pubic ramus (pelvis) fracture. He was discharged on 9 January 2020 and was required to wear a Thoracic-Lumbar-Sacral Orthosis ('TLSO') brace for at least six weeks.

Relevant Guidance Materials

Clause 78(1) of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation') provides that persons conducting a business or undertaking ('PCBU') must manage health and safety risks associated with a fall by a person from one level to another that is reasonably likely to cause injury. Clause 78(4) requires a PCBU to provide a safe means of access to and exit from areas where there is the risk of a fall.
Clause 79 of the Regulation applies where it is not possible to eliminate the risk of a fall to which clause 78 applies. Clause 79(3) states that a PCBU adequately protects against the risk if it provides and maintains a safe system of work, including by: 1. providing a fall prevention device if it is reasonably practicable to do so; or 2. if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system; or 3. if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.
Per clause 79(5) of the Regulation, a 'fall prevention device' includes edge protection and covers. Pursuant to clause 291, the defendant performed 'high risk construction work' because it involved a risk of a person falling more than two metres. Clauses 299 and 300 required the defendant to prepare and comply with a Safe Work Method System ('SWMS') that specified hazards and risks to safety, and the relevant controls.
At the time of the incident, the following guidance material was available to the defendant:

SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces (August 2019) ('the Falls Code'), which provides guidance for working at height, including requirements on training workers and supervisors, information on the hierarchy of controls, and using fall arrest equipment and anchorage points.
WorkCover NSW Safe Work on Roofs Code of Practice, Part 1, Commercial and Industrial Buildings 2009 ('the WorkCover Code'), which provides guidance on selecting anchorage points and the appropriate configuration of fall arrest systems.
SafeWork Australia's SafeWork on Roofs Information Sheet, January 2016, which provides guidance on relevant hazards when managing fall risks, effective control measures, and the correct method and suitable equipment when working on roofs.
Australian Standard AS/NZS1891.1:2007 (Industrial Fall Arrest Systems and Devices), which specifies the technical requirements for harnesses and associated equipment, fall arrest devices, and their use.

Systems of work prior to the incident

Prior to the incident, the defendant had a WHS and Employment Handbook, July 2018. It referred to hazard identification, risk assessments and implementing controls for the risk of falls. The defendant provided workers with a copy of the Handbook.
The defendant had a daily pre-start JSA function on its job management application. On 7 January 2020, the JSA did not address how to access and exit the roof.
The defendant developed a SWMS for the solar installation works on 26 September 2019, the same day that it quoted to undertake the work. It identified 'falling off heights greater than 1.8m' and 'slip, trip, fall' as hazards. It required harnesses to be attached to 'correctly installed fixed points'. The SWMS was generic and did not address specific risks associated with the building on the site. It was not seen by several workers, and it was not available at the site. The control measures in the SWMS were: '… all workers have completed a working at heights course, otherwise are not allowed to work at heights; all workers must wear approved fall arrest harness attached to correctly installed fixed points or runners; guardrails installed to perimeter of roofs etc., fencing around holes; general on-site training and awareness induction to the hazards associated with working at heights; ensure that handrails are checked for quality and safety before works begin.'
The method of access to the roof required workers to move onto a pitched face without an adequate means of support. The traveller rope was there 'for looks' and fixed in place by an L-foot bracket. The brackets were not structurally rated to use harnesses, and the defendant was aware of the availability of structurally rated anchor points.
The defendant did not use higher-level controls, such as scaffolding or work platforms, except on commercial jobs when such devices were installed by another company.
The defendant required its workers to undertake working at heights training, but none of its workers completed a height safety supervisor training course before the incident.
The requirement for workers to always wear harnesses when working on the roof was not enforced by the defendant's supervisors. Mr Coleman stated that roof workers generally did not clip their harnesses onto the ropes, and that monitoring safe work practices was not part of his role. Mr Brassington said that he did not always clip onto a rope and that he had observed workers not clipping onto ropes. Other workers stated that there was no rule to always clip on and that roof workers believed that they did not have to wear harnesses when undertaking domestic work.

Steps taken after the incident

The preschool had permanent anchorage points fixed onto the roof after the incident.
The defendant developed a documented 'roof plan' that identified the roof's skylights, permanent anchor points, and access point. It relocated the access point to the flat section of the roof, allowing workers to step directly from the ladder to the flat area. The defendant used properly rated temporary anchor points instead of L-foot brackets.
The defendant had its senior workers undergo height safety supervisor training.
The defendant revised its SWMS for roof solar panel installation and engaged a safety consultant to provide a fall prevention policy and Working at Heights Procedure (OHSP300083) dated 20 January 2020.

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

The defendant had a duty under s 19(1) of the Act to 'ensure' the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable: see 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 duty is positive, non-delegable, and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety (see WorkCover Authority (NSW) Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 per Hill J at 85).
The reasonably practicable measures to control the risk are set out in paragraphs 11(a)-(d) of the Amended Summons; 1. Installing fall prevention measures to manage the risk of falls from the roof of the building, such as temporary edge protection in the form of a perimeter guardrail system; 2. Implementing a safe system of work for installing the solar electricity system on the roof which included the following components: 1. Developing and documenting a roof plan which set out the location of anchor points and the access/egress point to the roof; 2. Installing structurally rated anchor points to enable the use of harnesses to undertake the work; 3. Confirming that workers secured their harnesses to anchor points and work under tension/restraint when working on the roof; and 4. A safe means of access to and egress from the roof, such as a secure ladder and a vertical anchorage line that was attached to the roof by a structurally rated anchor point and requiring workers to use it when accessing or egressing the roof. 1. Implementing the controls in its pre-incident SWMS which stated that all workers were to attach their harnesses to correctly installed fixed points; and 2. Providing adequate supervision to workers to ensure, so far as is reasonably practicable, compliance with a safe system of work for installing the solar electricity system on the roof of the building.
The following matters are relevant to determining the culpability of the defendant: 1. The risk was obvious, glaringly so. The risk of falling off heights greater than 1.8m was identified in the defendant's pre-incident SWMS for Working at Heights (ASOF at [48]); 2. The control measures were obvious and known to the defendant. Relevant controls were listed in the pre-incident SWMS: '… all workers must wear approved fall arrest harness attached to a correctly installed fixed point or runners; guardrails installed to perimeter of roofs etc' (ASOF at [48]). The SWMS also referred to the Act and relevant guidance material (ASOF at [49]); 3. The predominant failing was that the defendant's system of work was not properly implemented and enforced. Prior to the incident the defendant's supervisors did not consistently enforce the requirement for workers to always wear harnesses under tension when undertaking work on roofs (ASOF at [54] and [64]); 4. There was no adequate supervision on site. Mr Coleman observed workers not using the traveller rope and attaching harnesses to ropes (ASOF at [55]). Mr Coleman said monitoring safe work practices was not part of his role (ASOF at [63]); 5. Mr Brassington did not attach his harness to a rope grab when accessing the roof or when he reached the working area (ASOF at [23] and [64]); 6. Mr Brassington was the senior man for the roofing work and was the roof-supervisor. He did not attach his harness to the traveller rope setting a very bad example (ASOF at [23] & [64]). Furthermore, he did not supervise the young apprentices who also did not attach their harnesses to the rope (ASOF at [26]-[27] & [56]); 7. Prior to the incident Mr Williams effectively delegated his duty to either Mr Brassington, the roof-work supervisor, Mr Coleman as the only qualified electrician on site or Mr Geeves, the service and installation manager. Mr Geeves was not on site on the day of the incident (T16:25); 8. The potential consequences of the risk included a risk of death or serious injury. Mr Gallagher fell approximately 3.5m to concrete below (ASOF at [31]); 9. The likelihood of the risk materialising was reasonably high in circumstances where there were no adequate control measures implemented: 1. The L-foot brackets were not properly rated anchor points that were capable of arresting a person falling - they were designed for the purpose of securing solar energy systems to the roof (ASOF at [17]). 2. The SWMS was generic and did not address specific hazards and risk associated with the building (ASOF at [50]). 3. Three of the workers had not even seen the SWMS prior to the incident, being Mr Gallagher, Mr Brassington who was the Roof Works Supervisor and Mr Kahane (ASOF at [50]). 4. The supervisors did not consistently enforce the requirement for its workers to wear harnesses under tension at all times when undertaking the work on the roof (ASOF at [54]). 5. There was a practice of workers not clipping their harnesses onto ropes whilst working on roofs, which was known to the Installation and Service Manager, Mr Geeves and the Leading Hand/Site Supervisor, Mr Coleman (ASOF at [55]-[58]). 6. There was no safe means of access to the roof provided. Mr Coleman said the traveller rope was 'more there for looks' as opposed to having any functional purpose to minimise the risk (ASOF at [60]). 7. The supervision provided to the workers was inadequate (ASOF [63]-[64]). 1. There were simple, straightforward steps which could have and should have been taken to avoid the risk (ASOF at [6]). There were no permanently fixed or appropriate anchor points on the roof. The ones that were utilised were not designed and manufactured as sufficient to withstand the force of a person falling (ASOF at [60]). There were no guard rails nor scaffolding (ASOF at [46]). There was no compliance with the attachment of harnesses, and critically there was no supervision of the workers on the roof (ASOF at [62]-[64]). The steps were known to the defendant and documented in its pre-incident SWMS; 2. On January 2, 2020, more than one worker was exposed to a risk of death or serious injury. Three of the workers were apprentices and Mr Covi was employed as a roofing assistant. Mr Gallagher was 18 years old at the date of the incident; 3. The extent of the injuries to Mr Gallagher were significant (ASOF at [33]-[34]); and 4. The maximum penalty for the offence is $1,500,000.00.
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 gradation 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 [34];
Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
Whether the risk was known or ought to reasonably have been known to or identified by the defendant;
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).

The general risk is not novel or unique. Falling is a risk of working at height, which is clearly obvious. The potential consequences were serious injury and/or death. Mr Gallagher was lucky to have survived, although he continues to suffer as a result of this incident.
Had appropriate supervision been performed and Mr Gallagher was directed to use a fall protection device, the risk would have been eliminated. The fact that Mr Brassington, the Roofs Work Supervisor, did not attach his harness when accessing the roof is outrageous. It is made more deplorable in that not only was he setting a very poor example as the senior man on the job in front of the other younger and more vulnerable workers, he failed in his supervisory role as well.
As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme and the steps available to avoid the risk were known to the defendant and documented in its pre-incident SWMS, which were straight-forward and readily available.

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 Pty Ltd 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 at height. It seems that the message is not getting through to employers who require their workers to work at height - inherently dangerous work.
The frequency with which this Court deals with SafeWork prosecutions that involve a worker falling from height is not decreasing, and the devastation and harm that can and is caused by this dereliction of the duties imposed by the Act is a matter which I find very concerning. The attention of employers in circumstances such as this needs to be focused and heightened, as the risk was so obvious.
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.
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.
The defendant is a family company, and it is evident that the director, Mr Williams, has vast experience with the installation of solar panels and is extremely well qualified and invested in the industry. I also accept that Mr Williams' role as at the date of the incident was far more administrative than actual installation. In evidence, he stated that prior to the incident he spent about 90% of his time effectively in the office and 10% out on site (T5:28-31).
This is not a defendant that had no regard for the safety of its workers. There were some systems in place to address the risk of falls.
However, the breakdown of the system was: 1. the failure of persons to actually use what was appropriate for the task and was installed and available; 2. the failure of persons to recognise that some of what was installed was not sufficient in the circumstances; and 3. the total failure of supervision of vulnerable workers, including Mr Gallagher.
I note that the defendant continues to perform the same work as it did when the incident occurred. However, the defendant submits that it has put in place a number of procedures to demonstrate its commitment to safety on installations, and the size of the workforce has been reduced. Subsequent to the accident, Mr Williams now attends every single job site to make sure that things are going okay with the exception of service calls (T5:36-38).
I am concerned that the evidence discloses that the defendant utilises scaffolding whilst doing commercial jobs but does not for 'private' jobs as in this instance. The evidence demonstrates that on the 'commercial' jobs when the scaffolding is already installed, presumably by someone else and paid for by someone else, the defendant utilises that scaffolding. It is unsatisfactory that the defendant chooses not to organise and fund scaffolding on the 'private' jobs.
Moreover, the duty that is owed by the defendant to workers is non- delegable: s 14 of the Act. The defendant delegated its supervisory role to Mr Coleman, the Leading Hand/Site Supervisor, and Mr Brassington, the Roof Works Supervisor. As Mr Coleman was the only qualified electrician on site, he was there to attend to the installation of the inverter on the ground level, and as such he was not able to supervise the works on the roof.
Mr Coleman said that generally the workers on the roof didn't clip their harnesses to the ropes (ASOF at [55]).
Mr Kahane had worked on a roof without being attached to a rope and had seen other workers doing the same. He said that prior to the incident there was no rule in place to clip on at all times (ASOF at [57]).
Mr Geeves said the workers believed they didn't have to wear harnesses and ropes when undertaking domestic work (ASOF at [58]).
On the site on 7 January 2020, the role of supervisor fell to Mr Brassington, and he completely failed in his duty. As previously stated, he did not attach his harness to the grab rope, nor did he attach his harness to a rope when he reached the working area (ASOF at [23], [56] & [64]), nor did he exercise any supervision of the young workers.
I accept that the prospects of rehabilitation of the defendant are good given the changes that Mr Williams in particular, has made (ASOF at [65]-[71] but nonetheless the need for an element of specific deterrence is still necessary in these circumstances.

Aggravating Factors

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.
The injury and emotional harm caused by the offence was substantial: s21A(2)(g) of the Sentencing Act. Mr Gallagher sustained serious injuries. The prosecutor forwarded, by email to my associate, Certificates of Capacity/ Certificate of Fitness with regard to Mr Gallagher which demonstrate that he was off work for a period and had to wear a back brace. It seems he may then have had some capacity to work, but with restrictions as to what he could lift and/or pull. No further certificates after 2020 were provided.
The workers on the site at the relevant time were;

Reece Gallagher - first year electrical apprentice aged 18 years old;
Morgan Brassington - roof works supervisor aged 27 years old;
Shannon Coleman - leading hand/site supervisor/qualified electrician;
Joshua Kahane - second year electrical apprentice, aged 19 years old;
Glen Brownen - second year apprentice aged 19 years old; and
Ryan Covi - roof assistant aged 21 years old.

The younger men were vulnerable as a consequence of their age and their lack of training and experience. This makes the failure to supervise the works done by the young workers on the roof even more critical and as such it is an aggravating factor.

Mitigating Factors

The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.
I accept that the defendant has reasonable prospects of rehabilitation: s21A(3)(h) of the Sentencing Act. The defendant has undertaken significant steps to review and amend its processes so as to ensure that incidents such as this cannot occur again. These are detailed at paragraph 97 of Mr Williams' affidavit sworn 13 October 2022 (Exhibit B).
Mr Williams' affidavit (Exhibit B) demonstrates the acceptance of responsibility for the defendant's failures and demonstrates remorse and contrition: s21A(3)(i) of the Sentencing Act.
The defendant entered a plea of guilty early, which of itself demonstrates remorse, 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.
The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.

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 offender to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of 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).
At the sentence hearing, an affidavit of Mr Williams was read. Paragraphs 100-113 detail the defendant's financial situation, to which I have had regard in coming to my determination, and in doing so I acknowledge that the defendant has encountered some difficulties. Subsequent to the sentence hearing, the solicitor for the defendant forwarded documents to my associate by email. These documents included a letter by the solicitor to explain the contents of the financial documents and the documents themselves. They all relate to the defendant's loan/overdraft facility. It is evident that the company has outstanding loans, which it is required to service.
More importantly, the defendant, through its director, Mr Williams, and his wife/partner, Ms Brassington, have not provided copies of any bank accounts which they may hold personally. Mr Williams was cross-examined as to personal bank accounts (T9:8) as follows: 'Q. Aside from that, the document, are there other bank accounts held by yourself? A. Yes, I have personal bank accounts. Q. Are there bank accounts also held by Ms Brassington? A. Yes, she has her personal bank accounts. Q. If requested, would you be in a position to provide these documents to the Court? A. Of course, yes, sorry, yes.'
It is evident that the questions quoted above would have clearly indicated to Mr Williams that such documents are relevant to the capacity of the company to pay a fine. Nonetheless, these documents were not provided to the Court. It is not the Court's role to request such documents, nor is it the prosecutor's role in sentence proceedings. It is clear that the obligation falls to the defendant to put material before the Court so as to convince the Court to exercise its discretion and reduce the fine pursuant to s 6 of the Fines Act 1996 (NSW) if warranted in the circumstances.
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.'
On the basis of the totality of the documents before me, I will allow the defendant some leniency.
Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that the defendant is reasonably unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risk that Mr Gallagher and other workers were exposed to.
I suspect that Mr Williams and Ms Brassington may feel that this fine is too harsh, given that the defendant is a small family company, and the defendant's financial circumstances. Although, I do note that neither Mr Williams nor Ms Brassington provided any of the bank records for their own personal accounts.
However, my hands are tied by the decisions of the NSW Court of Criminal Appeal and the Sentencing Legislation which provides guidelines as to the appropriate parameters that are applicable to various offences.
In Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, an appeal as to the manifest inadequate fine in a decision of mine, Hoeben CJ at CL (as he then was); Fagan J and Cavanagh J, stated as follows: '[19] All of the company's conduct in maintaining a sound safety record before this incident and afterwards and its appropriate responses to the accident itself are as would be expected of a responsible trading corporation. The learned sentencing judge appropriately took into account the subjective circumstances referred to above and the need for general and specific deterrence. The dominant factor in determining an appropriate level of penalty is the very high order of negligence that made this infringement such an objectively serious offence of its kind. There is no specific fault in her Honour's attention to the relevant sentencing factors, including the objective seriousness of the breach, but the level of the penalty arrived at is, in this Court's view, manifestly inadequate by a factor of four. A starting point of $400,000 would be appropriate, discounted by 25% to $300,000.'
In that case, Mr Wild fell through a penetration in a ceiling to the concrete floor below and died as a consequence of his injuries. This was high risk construction work, but there were other workers present on the work site at the time the incident occurred.
In my mind that case is very different to the current proceedings. Mr Gallagher was a vulnerable, inexperienced eighteen-year-old who was not appropriately supervised. The person who should have been supervising him, Mr Brassington, not only failed to do so, but also set a very poor example to the younger inexperienced workers by not utilising the safety equipment himself. This makes the objective seriousness of the offending far worse than that in the matter of Jamestrong.
The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).
The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the 'normal' rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338.
The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: see Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
Having taken all of those matters into consideration and using my discretion to exercise some leniency due to the defendant's capacity to pay even though such evidence was fairly limited, I am of the view that the appropriate fine for the defendant is $800,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $800,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $600,000.00. 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 (NSW), the defendant is to pay the prosecutor's costs, agreed in the sum of $39,500.00.

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: 02 November 2022

Work Health and Safety Regulation 2017(NSW)

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