SafeWork NSW v Prime Metal Roofing Pty Ltd - [2023] NSWDC 16 - NSWDC 2022 case summary — Zoe

NSWNSWDC

SafeWork NSW v Prime Metal Roofing Pty Ltd

[2023] NSWDC 16

District Court of NSW|2022-12-16

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-12-16

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145
(2011) 34 VR 1 Green v The Queen [2011] HCA 49

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145(2011) 34 VR 1 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60(2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242(1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92(2009) 186 IR 125 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263

Judgment (34 paragraphs)

[1]

[4]

Work Health and Safety Duties Cannot be Delegated

Section 19(1) of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers.
Section 17 of the Act provides as follows: "17 Management of risks A duty imposed on a person to ensure health and safety requires the person-- (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
Section 14 of the Act provides as follows: "14 Duties not transferrable A duty cannot be transferred to another person."
Section 16 of the Act provides: "16 More than one person can have a duty (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
It is plain from those provisions that a PCBU cannot rely upon other PCBUs working on a project to ensure health and safety. Each PCBU on the project has an individual and non-delegable duty to ensure safety. In this case the fatal incident occurred only two months after the company was incorporated. Both Mr Holloway and Mr Marmont were young men with little or no commercial experience. While each had worked as a roofer, Prime Metal seems to have had no work health and safety system of its own. Rather, it relied upon the work health and safety system of Perry's Roofing Pty Ltd (Perry's Roofing).
When there are multiple trades working on a site, and several PCBUs are involved, safety should be enhanced rather than put at risk. This is because each PCBU has an individual duty to ensure safety. In this case, if even one of the PCBUs on site had carried out its obligations under the Act, then the incident would not have happened.
Prime Metal had a particular responsibility to the men on the roof, as they were employees of Prime Metal. Both the criminal law and the common law imposes a non-delegable duty upon employers in respect of employees. Mr Holloway and Mr Marmont were inexperienced in commercial matters, naïve and trusting. Prime Metal should have had its own safety systems and was obliged to take proactive steps to ensure the safety of its workers on the roof. It failed to do so.

[18]

Guidance Material

Clause 78 of the Work Health and Safety Regulation 2017 (the Regulation) provided: "Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person."
Clause 79 of the Regulation provided: "Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. … (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."
The WorkCover NSW Code of Practice Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 (Roofs Code of Practice) stated that before roof operations start, the principal contractor, in consultation with the contractors doing the work, must undertake an assessment of the risks involved in carrying out the work, and: 1. Ensure the roof structure is complete and braced. 2. Ensure the strength of the roof members is adequate to support the system to be used for controlling the risks of a fall injury. 3. Plan for positioning of bundles of roof material to avoid excessive point loading on the structure. 4. Identify the presence of any asbestos at the worksite or in the roof. 5. Ensure that all workers have received appropriate training and instruction. 6. Obtain Safe Work Method Statements (SWMSs) from the subcontractors, that adequately describe the work to be carried out.
The Roofs Code of Practice further provided that in addition to coordinating with the principal contractor, all contractors must: 1. Undertake an assessment of the risk involved in carrying out the work. 2. Provide a written SWMS, describing how the work is to be done safely. It should make an assessment of the risks involved in carrying out the work. 3. Plan to distribute materials and other equipment to be placed on the roof so that excessive point loading on the roof structure is avoided.
The Roofs Code of Practice also recommended that contractors should avoid storing old roofing material on the roof. Instead, they should transfer it from the point of removal to the ground.
The SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces dated April 2016 (Falls Code of Practice) stated that structures should be inspected to assess stability and, in some situations, advice may be needed from technical specialists, such as structural engineers, to check the stability of structures or load bearing capacity.
The Falls Code of Practice also stated: "Structural strength Different types of work involve different loads on the supporting surface. The surface and its supports must be able to safely carry the expected loads, including workers, materials, tools and equipment. When in doubt, have a structural engineer determine the safe load capacity before use."
The SafeWork NSW Code of Practice How to Safely Remove Asbestos dated September 2016 (Asbestos Code of Practice) stated that asbestos roof sheeting can become brittle with age, so any removal work on roofs should address the risk of fall hazards. It also stated that a system of removal that involves walking on the roof to remove roof sheeting should be a last option when choosing a method to remove roof sheeting.
The above Codes of Practice were readily accessible and available in the public domain prior to the incident.

[23]

Affidavit of Mr Kieran Joseph Holloway

Mr Kieran Holloway swore an affidavit on 22 November 2022 (DX 1). He is a director of Prime Metal. He was 28 years of age at the time of the incident.
Mr Holloway began his affidavit by conveying his sincere remorse and deep regret for the incident and the actions he should have taken but did not.
From the age of 14 years Mr Holloway pursued a career playing professional rugby league. He also worked as a garbage collector for URM in addition to playing rugby league. His high school friend Mr Michael Marmont already worked for URM and the two developed a strong bond. Mr Holloway met and became friends with Mr Joel White through Mr Marmont.
A shoulder injury put an end to his rugby career and his job at URM. Mr Holloway began coaching a local under 14s rugby league team at the Menai Colts club.
During his time at the Menai Colts club, Mr Holloway was offered a job as a roofer from his boss. He accepted this offer and worked for him for the next six years. With the help of his boss, Mr Holloway completed an apprenticeship in roof plumbing.
Mr Holloway told his boss that Mr Marmont was interested in getting a start in the roofing trade. Mr Marmont then began working with him.
After a few years Mr Marmont commenced working at Perry's Roofing.
Mr Holloway met Mr Perry through Mr Marmont. The style of roofing and type of work that Mr Perry did was very different to that which Mr Holloway did with his company. This led him to learn more about other aspects of his trade.
At the age of 21 years Mr Holloway was expecting his first daughter with his wife. He started to feel significant financial pressures and needed money to pay medical expenses. He began to work weekends and Christmas holidays with Perry's Roofing, which operated 7 days a week.
In 2018 Mr Marmont told Mr Holloway that Mr Perry needed subcontractors to help with his increased workload arising from the hailstorms that had occurred in Sydney that year. Mr Holloway's work friends were all burnt out from working 7-day weeks on a subpar wage and missing out on quality time with family and friends. It made sense to Mr Holloway to take this opportunity to start a business, now feeling ready after having spent several years in the roofing trade.
Mr Holloway discussed in his affidavit a separate workplace incident involving Prime Metal which occurred on 11 February 2019. This incident resulted in the death of a Prime Metal worker and friend, Mr Joel White.
About two weeks after the incident, following Mr White's funeral and a funeral for Mr Marmont's father, Mr Holloway and Mr Marmont informed their team that they were closing the business and considering not returning to roofing. However, Mr White's parents told them to continue their work because that is what Mr White would have wanted.
Mr Holloway did not think it was the right decision for him but decided to remain in the roofing trade. Roofing was all he knew and he didn't feel comfortable with a fresh start in another trade because he needed to make an income to look after his family.
Mr Holloway asked Mr Perry if he had a job for Prime Metal. However, Mr Holloway explained that he and Mr Marmont did not want to manage the job.
Prime Metal commenced working under Mr Perry's employee, Mr Billy McAskill, using Perry's Roofing SWMS and wearing Perry's Roofing's uniform, as was the case with all their other jobs.
Mr Holloway considered himself labour hire even when operating a business of his own. Things had not changed much when he and Mr Marmont started up the business in terms of how work was done.
Mr Holloway then stated that the incident occurred when the roof collapsed at the Moorebank site.
Prime Metal's staff came to work knowing what had to be done, to be extra cautious when undertaking even the smallest and simplest tasks and to always keep an eye out for each other.
Prime Metal were tasked with stripping the asbestos and re-sheeting the roof with metal roof sheets on an abandoned factory. It was the same as all other jobs Prime Metal had done for Perry's Roofing. The workers used the same system that Perry's Roofing and its foreman told them to comply with.
On Prime Metal's first day back at work, a timber purlin snapped creating a sink hole in the roof. Two of Prime Metal's employees and one of Perry's Roofing's apprentices fell through the roof. Remembering the earlier incident, Mr Holloway burst into tears and sprinted to render assistance and ensure they were not hurt. He stated that he assumed the worst and was extremely lucky the workers didn't sustain more serious injuries.
The incident occurred a day after Mr Holloway had a counsellor come and speak to the Prime Metal crew to offer help from the previous incident.
Mr Holloway immediately went to the hospital after he finished speaking to the SafeWork NSW officer who attended that day and spent the night with Mr Te Riini and Mr McKenzie.
Mr Holloway described the depression and stress he experienced. Amidst this his second daughter was born and he was again feeling financial pressures, exacerbated by the fact he now had one more child and had to pay a lawyer for both incidents.
Mr Holloway stated that if he knew that there was the slightest chance of anyone being placed at risk of even the smallest injury, he would not have worked on the site. He acted on the advice and instruction of Advanced Building's builder, Perry's Roofing, and the foreman who he trusted a second time. He considered they had everything under control for the job to run safely, especially following the workplace incident that had occurred only weeks earlier.
Mr Holloway accepted responsibility for what occurred on the day of the incident.
Mr Holloway stated that he has learned so much from both incidents. He acknowledged where he went wrong as a person and as a boss to Prime Metal's workers.
He has gone back to work earning a basic pay, is still paying off legal fees, living payday to payday to provide for his family.
Mr Holloway apologised to all of those who had been impacted by the incident and expressed remorse for Mr McKenzie and Mr Te Riini.
Mr Holloway further apologised that he had the power to stop this from happening but did not act upon it.

[24]

Affidavit of Mr Michael Gregory Marmont

Mr Michael Marmont swore an affidavit on 6 December 2022 (DX 2). He is a director of Prime Metal. He was 29 years of age at the time of the incident.
Mr Marmont began his affidavit by stating his sincere regret and remorse for the incident.
Mr Marmont was introduced to construction work by his father who he worked alongside while still at school and then full-time once he completed his Year 12 Certificate. They worked on big projects, including the construction of the M7 Motorway and the upgrade of the Kingsgrove to Revesby rail lines.
At the age of 18 years, Mr Marmont wanted a new challenge and took up an opportunity with a childhood friend for a job in roofing. He quickly loved the work and met many liked-minded people who also enjoyed construction.
Mr Marmont started as a labourer and worked tirelessly over the years to learn the metal roofing trade, which became his passion and livelihood.
Mr Marmont started working at a company called Ace Roofing with his friend Mr Holloway.
After seven years Mr Marmont commenced working with Perry's Roofing under the owner, Mr Perry.
After a further three years Mr Marmont noticed many other roofing companies subcontract roofing work through Mr Perry's business. This led Mr Marmont to take the opportunity to do the same after 10 years of working in the trade. Ultimately, he and Mr Holloway made the decision to become business owners and subcontract to Perry's Roofing, with the ambition of one day owning a successful roofing business.
Mr Marmont discussed in his affidavit the separate workplace accident involving Prime Metal on 11 February 2019 which resulted in the death of Mr White.
Mr Marmont decided to continue roofing following a conversation with Mr White's father who assured him it was what Mr White would have wanted. However, he has not returned to managing jobs and no longer wanted the responsibility of overseeing anyone else.
Since the incident he has returned to his first boss at Ace Roofing over the past few years.
Mr Marmont apologised to Mr Derick McKenzie, Mr Warren Irving and Mr Daniel Te Riini.
Mr Marmont also gave his apologies to the Court, SafeWork NSW and the emergency services for having to deal with the details and trauma of the incidents.
Mr Marmont stated that it has also been tough financially. Prime Metal never blossomed. Mr Marmont and Mr Holloway lost not only the business but also their savings.
The incident has made him aware of safety around job sites. Now minor safety hazards stand out to him like life threatening hazards.

[26]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. Prime Metal should have known of the risk. In any event the risk was foreseeable and there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was significant. Perry's Roofing, which gave the direction to the workers to stack 20 to 25 sheets in a pile, created a stack which weighed twice what it should have. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. 5. There was no great burden or inconvenience in these steps being implemented. 6. Three workers fell and were thus put at risk of serious injury or death. It was a miracle that no workers were killed or more seriously injured. 7. The maximum penalty for the offence is a fine of $1,500,000 which reflects the legislature's view of the seriousness of the offence. 8. Only 17 days earlier, Prime Metal breached its duties under the Act, resulting in the death of a young labourer and serious burns to another worker. The sentence hearing in that matter took place on the same day as the hearing in these proceedings. While that was a different site, with different workers, and a different risk, once again Prime Metal trusted Perry's Roofing to ensure the safety of workers and did nothing itself. 9. The Act specifically states that work health and safety duties cannot be delegated. A PCBU cannot, in effect, shrug its shoulders and say "someone else will look after safety". 10. The failures by Prime Metal are largely explained, but not excused, by the commercial inexperience and lack of business sophistication of Mr Holloway and Mr Marmont.
I find that the level of culpability of Prime Metal is in the mid range.

[30]

Parity

Perry's Roofing was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident.
Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].
The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
The Court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
It is appropriate for the court to consider the respective contributions of Perry's Roofing and Prime Metal. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
I find that Prime Metal was less culpable than Perry's Roofing. I assessed the objective seriousness of the breach of duty by Perry's Roofing in the high range: SafeWork NSW v Perry's Roofing Pty Ltd (No. 2) [2022] NSWDC 262 at [109].
Perry's Roofing was a larger, more experienced and more sophisticated organisation than Prime Metal. Perry's Roofing provided its own safety system, which Prime Metal naively assumed would have been adequate. Perry's Roofing provided the foreman who directed how Prime Metal was to carry out the job. By contrast, Prime Metal was essentially providing labour to work under the aegis of Perry's Roofing.

SafeWork NSW v Prime Metal Roofing Pty Ltd

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Catchwords

Judgment (34 paragraphs)

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Legislation Cited (5)

Cases Cited (29)