SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse

Workers of PCW

1. Tyler Webb was a 20-year-old, third year carpentry apprentice employed full-time by PCW. He commenced his employment with PCW approximately four years before the incident. When Mr Webb first began working at PCW, Mr Woodhouse placed him on a three to four week trial where he performed work under PCW supervisors.
2. Mitchell Gibson was a 26-year-old fulltime supervisor employed by PCW. He commenced his employment with PCW approximately four to five years before the incident. He held a Certificate III in Carpentry.
3. Nathan Morley-Clarke was a 28-year-old fulltime employee of PCW since 2012. He had completed an apprenticeship in Construction.
4. Before the incident occurred, Mr Webb, Mr Gibson and Mr Morley-Clarke all had previous experience working on roofs while employed by PCW.

The incident

1. PCW was contracted by Davimac Trading Pty Ltd (Davimac) to perform roofing work at Davimac's premises on Wellington Street, Molong (the site). The work involved removing the current roof sheets, installing insulation and mesh, and then reinstalling the existing roof sheets on one of the sheds at the site (the shed).
2. On 13 June 2020, Mr Webb, Mr Gibson and Mr Morley Clarke of PCW were working at the site. Mr Gibson was the nominated supervisor.
3. The roof of the shed was 9 metres above the ground at its highest point. The roof of the spray booth in the shed had four skylights constructed of Alysnite or Perspex material. They were approximately 7 metres from the ground and measured approximately 900 mm by 2400 mm.
4. The materials required to complete the task including the roof sarking paper, the mesh and a scissor lift, were already on site when Mr Webb and Mr Gibson arrived at about 7.30am.
5. Mr Woodhouse was present in the morning but left the site at some point during the day to attend to other tasks.
6. Before the work commenced, Mr Woodhouse provided a toolbox talk to Mr Webb and Mr Gibson, during which he provided instructions to begin from the internal wall. He did not instruct Mr Webb and Mr Gibson on how to access the roof.
7. Mr Morley-Clarke was contacted by Mr Gibson at some point in the morning and was asked to attend the site to assist Mr Gibson and Mr Webb in carrying out the work. Mr Morley-Clarke arrived approximately before 12pm. He was not present for Mr Woodhouse's toolbox talk.
8. When Morley-Clarke arrived on site, Mr Gibson and Mr Webb were still working on the ground organising materials. He read the Safe Work Method Statement (SWMS) and signed it.
9. Mr Morley-Clarke's role on the day involved working on the ground to prepare the materials for Mr Gibson and Mr Webb. This included cutting the roof sarking paper and mesh to the appropriate size. At no point did Mr Morley-Clarke access the roof.
10. Mr Webb accessed the roof through a scissor lift or a forklift with a man bucket. The forklift was owned by Davimac and a Davimac employee had offered its use to Mr Gibson, who accepted. The forklift was locked inside the shed. A Davimac employee assisted the PCW workers to start the forklift. The scissor lift was located outside of the shed and was operated by Mr Gibson or Mr Morley-Clarke.
11. While undertaking the roofing work, Mr Gibson and Mr Webb were not wearing a fall protection device such as a harness. No fall prevention measures were in place.
12. Mr Gibson remained on the roof for a short time to demonstrate to Mr Webb how to complete the task. Mr Webb remained on the roof while Mr Gibson performed work on the ground. At some point, Mr Gibson was in the bucket of the forklift tying off the mesh. As the roof was pitched, there was a box gutter two metres away from the edge where Mr Webb performed his work.
13. While Mr Gibson was tying off the mesh from the bucket of the forklift, Mr Webb was on the roof and continued to remove the roof sheets by unscrewing them. The roof sheets were over a metre long.
14. While pulling off one of the roof sheets, Mr Webb took a step backwards and fell through one of the skylights.
15. Mr Webb fell approximately 6.5 metres to the concrete floor below. Mr Gibson and Mr Morley-Clarke heard Mr Webb yell and immediately came to his assistance. Mr Webb was conscious but felt winded and believed his wrist was broken. Mr Morley-Clarke drove Mr Webb to the hospital in a work vehicle.
16. Mr Webb sustained a fractured rib, multiple pelvic fractures, and a fractured wrist as a result of the incident.

SafeWork Inspection

1. Following the incident, SafeWork NSW conducted a site inspection and made certain observations about the dimensions and features of the shed, including the four skylights on the roof of the spray booth area which were approximately 7 metres from the ground.

Induction and training

1. PCW and Mr Woodhouse did not induct the workers to the site so as to confirm that they understood the risks associated with the work.
2. Mr Webb and Mr Gibson had not received any external working at height training.

Toolbox talk

1. The toolbox talk conducted by Mr Woodhouse was undocumented. During the toolbox talk, Mr Woodhouse did not provide any instruction as to how the workers were to access the roof and perform the task safely. Nor did Mr Woodhouse instruct the workers to use any harnesses that could be attached to anchorage points on the roof.
2. Mr Webb only recalled Mr Woodhouse instructing the workers to "be careful" in relation to undertaking the work.

Safe Work Method Statement

1. Prior to work commencing at the site, Mr Gibson prepared a SWMS for the work which was approved by Mr Woodhouse.
2. The SWMS did not note a "work at height" risk nor a risk of a person falling more than 2 metres. No control measures to address the risk of falling from heights were set out.
3. The SWMS did not provide an accurate description of the work to be performed. It noted only "Roof" as the project and Davimac as the client.

Fall prevention measures

1. Mr Webb and Mr Gibson were not wearing harnesses when they performed the work on the roof of the shed which was approximately 6.5 metres above the floor below.
2. There was no edge protection in place around the roof or the skylights. There were no covers over the skylights to prevent a worker falling through them and there was no safety netting below the skylights. There was also no work platform in place to prevent workers needing to stand on the roof.
3. Employees noted that PCW owned harnesses and retractable lanyards but that they were outdated and only used under the direction of Mr Woodhouse.
4. Mr Woodhouse did not ensure that PCW had sufficient processes and resources in place to ensure that adequate fall protection measures were provided and used by PCW workers when working from heights.

Supervision

1. Mr Webb was directly supervised by Mr Gibson at the time of the incident. Neither Mr Webb nor Mr Gibson had been provided with fall prevention measures nor instructed or directed by PWC or Mr Woodhouse to use such measures when carrying out the work.
2. PCW did not have a supervisory process or procedure in place that stopped workers from working on the roof without the use of fall prevention measures.

Guidance material

1. A significant amount of guidance material was available to PCW and Mr Woodhouse to control the risks associated with working from heights.

Work Health and Safety Regulation 2017

1. Clause 78 of the Work Health and Safety Regulation 2017 (the Regulation) specifically states that a PCBU at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to that person or any other person.
2. 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) relevantly provides that: (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by-- (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) 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. Examples : 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note : A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose.
3. Clause 79(5) defines "fall prevention device" to include: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers.
4. Clause 291(a) of the Regulation defines "high risk construction work" as including construction work that "involves a risk of a person falling more than 2 metres." This triggers the application of clause 299(2) of the Regulation, which requires a SWMS to: (a) identify the work that is high risk construction work, and (b) specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and (c) describe the measures to be implemented to control the risks, and (d) describe how the control measures are to be implemented, monitored and reviewed.
5. PCW's SWMS was not adequate for the high-risk construction work being undertaken at the site. Mr Woodhouse did not ensure that PCW had an adequate system of work in place to eliminate or minimise the risks to health and safety arising from the roofing work.

SafeWork NSW Code of Practice - Construction Work, April 2019

1. The SafeWork NSW Code of Practice - Construction Work dated April 2019 (the Construction COP) provides practical guidance on the requirements of the Regulations set out above and how to comply with them. The Construction COP was available on the SafeWork NSW website prior to the incident.

SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces, August 2019

1. Chapter 4 of the SafeWork NSW Code of Practice - Managing the Risk of Falls at Workplaces dated August 2019 (the Falls COP) recommends the use of a scissor lift or work platform when work cannot be performed on the ground if it is reasonably practicable to do so.
2. Chapter 5 of the Falls COP provides guidance for when work cannot be performed on the ground or from a solid construction, by requiring a PCBU to provide a fall prevention device if it is reasonably practicable to do so.
3. At Section 3.3, the Falls COP also refers to risk assessment and recommends that when assessing the risks arising from each fall hazard, a number of factors be considered including "the adequacy of current knowledge and training to carry out work safely, for example, young, new or inexperienced workers may be unfamiliar with the work."
4. The Falls COP was available on the SafeWork NSW website prior to the incident.
5. PCW did not comply with or follow available guidance material for the work undertaken on the roof at the site. Mr Woodhouse did not ensure or verify that PCW had in place appropriate resources and processes to comply with its obligations as set out in the guidance material.

SafeWork Australia Information Sheet, January 2016

1. The SafeWork Australia Information Sheet dated January 2016 (Information Sheet) states that protection must be provided to workers where there is a risk of falling through a roof while undertaking roofing work. Recommended control measures include: 1. an elevated work platform; 2. crawl boards of a suitable size and strength; 3. safety mesh secured under fragile roofing or skylights; and 4. a harness system with adequate anchorage points, along with appropriate training and supervision.
2. The Information Sheet provides advice on the hazards and control measures associated with working on roofs. The Information Sheet was available on the SafeWork NSW website prior to the incident.
3. The Information Sheet identifies "fragile surface, skylights, holes or vents" as a hazard to consider when managing fall risks and refers to safe systems of work when working at height cannot be avoided, including "individual fall-arrest systems with harnesses and anchor points and safety nets".
4. The Information Sheet further states that all roofs "should be treated as fragile until a competent person has confirmed they are not" and that roofs are likely to be fragile where they are constructed of a number of materials including "polycarbonate or plastic commonly used in skylights". Protection must be provided where there is a risk of falling through the roof and work is being done on the top of the roof, including "safety mesh secured under fragile roofing or skylights" and/or "a harness system with adequate anchorage points, along with appropriate training and supervision".
5. PCW did not comply with or follow any of the guidance material available for the work undertaken on the roof at the site. Mr Woodhouse did not ensure or verify that PCW had in place appropriate resources and processes to comply with its obligations as set out in the guidance material.

Systems of work following the incident

1. After the incident, PCW took the following steps: 1. implemented new procedures for working at heights, including ensuring that all workers were appropriately trained and inducted prior to commencing work, and ensuring that fall protection was in place for skylights, including the use of harnesses which were in date and in good condition at all times; and 2. revised its SWMS so as to include the identification of fall risks and implemented new systems including: 1. specific information around the use of elevated work platforms, harness requirements and site specific controls; 2. skylights to be covered with iron sheets to prevent falls; 3. ensuring that mesh is installed underneath to minimise the risk of a fall at height; and 4. added control requirements.

Offenders' Case on Sentence

1. The offender relied on an affidavit of Peter Woodhouse sworn 6 June 2022, an affidavit of Mitchell Gibson sworn 3 May 2022, and an affidavit of Adam Gersbach sworn 11 May 2022. The content of these affidavits can be summarised as follows. I will not repeat matters already referred to.

The Affidavit of Mr Woodhouse

1. Mr Woodhouse was 52 years old and resided in Molong with his de facto spouse. He has five adult children, four of whom were financially dependent on him.
2. Mr Woodhouse deposed that the town of Molong had a very tight knit community and the injury to Mr Webb received a lot of local publicity.
3. Mr Woodhouse was born in Orange and attended primary school and high school there. He left school halfway through Year 11 and commenced a trade apprenticeship with Telecom. He worked for Telecom and subsequently for Telstra for 18 years. He then worked for Hutchinson Telecommunications. A lot of this work involved working at heights and supervising other trades workers. Mr Woodhouse deposed that OHS was very stringent and he became very conscious of safety in the workplace and working at heights regulations.
4. In 2008 Mr Woodhouse completed his Clerk of Works at Orange TAFE which permitted him to become a licensed builder. In 2008 he commenced as a sole trader under the business name PCW Constructions and then in 2013 he established PCW Constructions Pty Ltd.
5. In the mid-2000s, Mr Woodhouse and his family moved to Molong and Mr Woodhouse commenced working as a sales representative for Ultra Steel Sheds. He developed a good network of contacts in the local construction industry and decided to establish PCW. Mr Woodhouse slowly built up the business through word-of-mouth referrals and by developing his reputation through jobs. Between 2008 and 2015, the business grew from two employees to nine employees. This remained the situation until about 2020 when Mr Woodhouse decided to scale back the business, largely as a result of the injury to Mr Webb.
6. Mr Woodhouse always sought to employ and engage workers from the Molong region to support the local community. Mr Woodhouse and his family were active and involved members of the local community and Mr Woodhouse contributed to two local clubs.
7. Mr Woodhouse attended the Davimac premises approximately two weeks before the incident to inspect the site, scope out the area and ascertain what work needed to be performed. During the inspection, Mr Woodhouse observed the skylights on the roof of the shed and that there was no safety mesh under the skylights and he made a mental note to be aware of this.
8. Mr Woodhouse deposed that he had developed a plan and strategy for the work to be performed at the site. He attended the toolbox talk conducted at the site on the morning of 13 June 2020, along with Mr Gibson and Mr Webb. He explained to them that there were skylights on the roof and told them that they needed to be aware of the skylights because there was no safety mesh under them. He said to them words to the effect of, "Guys you need to start at that end (motioning to where he wanted them to start) remove some sheets, lay down the mesh and insulation, put the sheets back on and then work towards the skylights." Mr Webb and Mr Gibson both indicated to Mr Woodhouse that they understood what he was telling them. Mr Woodhouse then had to leave the site due to personal circumstances. Mr Woodhouse deposed that had it not been for those personal circumstances, he would have remained at the site, and that he regretted immensely that he had not been on site that day as he believed his presence could have prevented the injury suffered by Mr Webb.
9. Mr Woodhouse deposed that Mr Webb commenced working with him as a labourer when Mr Webb was about 17 years of age. After observing Mr Webb's work ethic and attitude, Mr Woodhouse suggested that he think about enrolling in TAFE and undertaking an apprenticeship. Mr Webb took up Mr Woodhouse's suggestion and Mr Woodhouse paid for his TAFE while Mr Webb undertook a building apprenticeship with PCW. Mr Webb had approximately six months off work as a result of the injuries he sustained in the incident and was able to recover sufficiently to return to work with Mr Woodhouse. Mr Webb stayed on with PCW until Christmas 2021, when he took up an opportunity at his father-in-law's business. Mr Woodhouse and Mr Webb still have a good relationship and Mr Webb often visits Mr Woodhouse at his home.
10. Mr Woodhouse decided to scale back PCW as a result of Mr Webb's injuries, with the business now only involving concreting. Mr Woodhouse deposed that while the concreting process is not without risk, it is a lot less risky overall than shed construction because there is no working at heights.
11. Mr Woodhouse deposed that the incident had a significant and ongoing impact on him. He expressed deep remorse and regret for the injuries sustained by Mr Webb and for him not being on site on the day.
12. Mr Woodhouse found out about the incident through a telephone call from one of PCW's workers. Mr Woodhouse immediately called his ex-wife who was nearby and asked her to go to Molong Health Service. Mr Woodhouse drove from his rural property to the hospital but could not enter due to COVID restrictions. He subsequently learned that Mr Webb was being transported to Orange Health Service and Mr Woodhouse visited him there. Mr Woodhouse communicated with Mr Webb's mother the entire time that he was in hospital. When Mr Webb returned to work, Mr Woodhouse ensured that he was only doing jobs that he could physically do and told him to leave work early if he felt tired.
13. Mr Woodhouse deposed that he had provisioned for the imposition of a fine by the Court and sought to ensure that PCW had sufficient funds to satisfy a fine. This included by scaling back the business and arranging for the sale of two fully equipped work trucks and a utility vehicle owned by PCW.
14. Mr Woodhouse unreservedly apologised to Mr Webb, his family, the public and the Court for the incident and expressed confidence that an incident of that type would never happen again due to the changes made to PCW's system of work following the incident.

The Affidavit of Mr Gibson

1. Mr Gibson was the Director and owner operator of MHM Constructions Pty Ltd. He commenced working with Mr Woodhouse at PCW as a builder in March 2017.
2. Mr Gibson deposed that Mr Woodhouse had always been very aware of WHS and would often have very sound and practical suggestions regarding safety in the workplace and on building sites. He also stated that Mr Woodhouse was an excellent builder and employer who was calm, level-headed, fair and reasonable, and that he had been a great support and mentor for Mr Gibson when he established his own construction business.
3. Mr Gibson recalled Mr Woodhouse attending the site to conduct the toolbox talk and remembered him saying words to the effect of, "When you are up on that roof watch out for the skylights." Mr Gibson stated that he and Mr Webb had averted the skylights on several occasions while working on the roof that morning and that he believed the incident was a momentary lapse of concentration. Mr Gibson stated that it was "pretty horrendous" to see Mr Webb fall through the skylight and the injuries he sustained. Mr Gibson deposed that though the incident could have been prevented through the use of harnesses, it was common practice in the industry to only wear a harness when working on steeply pitched rooves where there is a real chance of falling. He also deposed that any barricade around the skylight would have had to have been very big and would have been difficult and expensive to construct. Mr Gibson was of the opinion that PCW could not have done much to avoid the incident.
4. Mr Gibson confirmed that Mr Webb had never indicated that he blamed Mr Woodhouse for his injury. He also stated that never during his own apprenticeship or his time as a qualified builder had he been told that working at heights safety training was mandated by SafeWork NSW.

The Affidavit of Mr Gersbach

1. Mr Gersbach was the Managing Director of Global Steel Enterprises Pty Ltd. He has known Mr Woodhouse for approximately 15 years through working in the building and construction industry. Mr Gersbach and Mr Woodhouse had worked together on a number of projects over the last six years.
2. Mr Gersbach stated that while he had not directly observed Mr Woodhouse working on sites, Mr Gersbach had a practice of following up with his customers and clients and could not recall any occasion when he had received any negative comments about the quality of workmanship provided by PCW.
3. Mr Gersbach expressed a high level of regard and respect for Mr Woodhouse's business ethics and his approach to work. He deposed that Mr Woodhouse had expressed extreme remorse and regret to him about the injuries sustained by Mr Webb and had told him on a number of occasions that he was extremely worried about the financial implications of the SafeWork NSW prosecution. Mr Gersbach stated that based on his knowledge of Mr Woodhouse and the quality of his construction work, his high levels of integrity and good character, and the comments he had made to Mr Gersbach about the "wake-up call" that the SafeWork NSW prosecution has been for him, Mr Gersbach had no doubt that he would be extremely careful about WHS issues in the future.

Consideration

1. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

1. The offences are objectively serious.
2. The risk of a worker falling off or through the roof was obvious. PCW took almost no steps to minimise the risk. The administrative controls it did introduce were fallible and likely to be ineffective.
3. The risk was likely to result in harm if adequate precautions were not taken.
4. The consequences of the risk included a risk of death to more than one person.
5. The steps that could have been taken steps to eliminate and/or minimise the risk were well known in the industry and were the subject of guidance material that was publicly available. Some of the steps, such as covering the skylights with wood or providing edge protection around the skylights were relatively simple and involved very little expense or inconvenience. Other steps, such as providing the workers with external working at height training involved some expense, but considering the work they were undertaking, it was a necessary step to comply with the duty of each offender.
6. Mr Woodhouse failed in his duty of due diligence to ensure that PCW had taken all reasonably practicable steps to eliminate or minimise the risk to its workers.
7. The serious injuries sustained by Mr Webb are an aggravating factor.
8. I have taken into account the maximum penalties provided for the offences.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
2. The penalty imposed must also provide for specific deterrence. PCW continues to operate a business that poses some risks to workers. The need for specific deterrence is reduced by reference to the PCW's previous good record and its responses to the incident. Mr Woodhouse continues to manage PCW and to supervise its workers. I accept that the incident has had a serious impact on him and that he has decided to change the activities at PCW to reduce risks to its workers.

Aggravating Factors

1. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond 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]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the serious injuries sustained by Mr Webb are sufficient to establish the aggravating factor.

Mitigating Factors

1. Neither offender had a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. PCW has been operating since 2013, but I note that Mr Woodhouse operated the business as a sole trader from 2008. Mr Woodhouse is presently 52 years of age.
2. Mr Woodhouse was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. In addition to having no criminal convictions, Mr Woodhouse was a respected member of the community and a reputable builder. His prompt actions in response to the incident confirm his moral standing. I note that Mr Woodhouse arranged for the plea of guilty to be entered at the first return date of the summons and that he took steps after the incident to make provision for the fines that he accepted would be imposed.
3. Both offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have each accepted responsibility for the offences and made changes to their processes to prevent a repeat of the incident. I am satisfied that each has good prospects of rehabilitation.
4. The offenders have demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Woodhouse, on his own behalf and on behalf of PCW, has accepted responsibility for the offenders' failures, acknowledged the harm to Mr Webb and has expressed genuine contrition and remorse.
5. The offenders entered a plea of guilty at the earliest opportunity: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. The plea was entered on the first return date of the summons. The plea also demonstrates remorse: R v Borkowski (2009) 195 A Crim R 1 at [32]. The appropriate discount is 25%.

Other Matters

1. I have taken into account the relative size of PCW and its financial circumstances in formulating an appropriate fine.

Penalty

1. PCW Constructions Pty Ltd is convicted.
2. The appropriate fine is one of $120,000 that will be reduced by 25% to give effect to the plea of guilty.
3. I impose a fine of $90,000 on PCW Constructions Pty Ltd.
4. Peter James Woodhouse is convicted.
5. The appropriate fine is one of $40,000 that will be reduced by 25% to give effect to the plea of guilty.
6. I impose a fine of $30,000 on Peter James Woodhouse.
7. The offenders are to pay the prosecutor's costs of the proceedings, agreed in the sum of $17,500.
8. I order pursuant to s 122(2) Fines Act 1996 that 50% of each fine is to be paid to the prosecutor.

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: 25 July 2022