SafeWork NSW v Riverwall Constructions Pty Ltd - [2022] NSWDC 408 - NSWDC 2022 case summary — Zoe

NSWNSWDC

SafeWork NSW v Riverwall Constructions Pty Ltd

[2022] NSWDC 408

District Court of NSW|2022-08-30

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-08-30

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]

Engagement of Works

Procare sought three quotes to replace the damaged roof. Riverwall Constructions tendered and was eventually appointed by the insurer to replace three roofs at the site. Its tender, which was limited to the re-instatement of the hail-damaged roof and associated works, recorded that Riverwall Constructions would oversee the project and supervise it, although supervision was not to be provided on a full-time basis. The tender stated that Riverwall Constructions had not allowed for a full-time site manager/foreman.
On 21 December 2018 Procare contacted Riverwall Constructions requesting "Make Safe" works to fix the damage at the site.
On 21 December 2018 Mr Dedes attended the site and conducted a visual inspection of the internal damage to the roof. Mr Dedes did not access the roof at any stage. He was not licensed or qualified to do so.
On 21 December 2018 Riverwall Constructions requested Perry's Roofing to attend the site to evaluate the external damage and provide a quote to repair or replace the roof.
Perry's Roofing submitted a quote to Riverwall Constructions dated 21 December 2018 for $212,965.50 to replace the hail-damaged asbestos roof (PX 1, Tab 8).
Once the "Make Safe" works were completed, Procare conducted a tender process to replace the roof.
Riverwall Constructions submitted a tender to Procare dated 4 January 2019 to carry out the re-instatement of the hail-damaged roof and associated works in accordance with its site inspection, for a total amount of $268,705.80.
The quote already obtained from Perry's Roofing was incorporated into the Riverwall Constructions tender.
Procare subsequently requested Riverwall Constructions to provide a roof report. Riverwall Constructions engaged Perry's Roofing to attend the site for this purpose as Perry's Roofing had qualified and licensed employees who were capable of accessing the roof for such inspection.
On 15 January 2019 Perry's Roofing accessed the roof and provided Riverwall Constructions with a roof report which was then provided to Procare. The report detailed the condition of the roof and contained photographs taken while standing on the roof. The report made no mention of power lines.
Mr Dedes prepared the Riverwall Constructions Approved Scope of Works document dated 21 January 2019 which confirmed that Riverwall Constructions was authorised to complete the works contained in the document (the works). Procare approved the works on the basis that Riverwall Constructions would not be providing full-time supervision.
Riverwall Constructions then prepared for the works to be completed. Mr Dedes, on behalf of Riverwall Constructions, prepared a Project Plan document for the works and obtained copies of the SafeWork NSW permits and licences of Perry's Roofing, as well as the Perry's Roofing Safe Work Method Statement (SWMS).
Riverwall Constructions gave Perry's Roofing a Work Order No. 9735 to complete the works described in the Perry's Roofing quote. The works were to commence from midday on 31 January 2019.
Perry's Roofing then engaged Prime Metal to supply labour to remove and replace the roof at the site. This engagement was done via a text message sent from Mr Perry to Mr Holloway on 5 February 2019.
Prime Metal was told by Mr Perry to invoice HiVis Boys for the work done at the site.

[7]

The Incident

On Friday, 8 February 2019, Prime Metal started work at the site. Mr Holloway started the job on that day and had 10 people working on the roof of the warehouse, including Mr White and Mr Higham.
On Saturday, 9 February 2019, there were 20 workers installing steel barge capping and replacing asbestos roof sheeting with new roof sheets.
On Sunday, 10 February 2019, work continued on the roof of the warehouse.
On Monday, 11 February 2019, there were seven workers engaged by Prime Metal performing work on the roof.
On the afternoon of 11 February 2019, as the workers were finishing up on the roof, Mr White asked Mr Holloway and another Prime Metal worker, Mr Troy Irwin, if there was any other work that they could undertake prior to finishing for the day. Mr Irwin suggested screwing off or loosening the bolts of the handrails, so that they would be ready to be taken down the next day.
There is no evidence that Mr Perry, Mr McAskill or anyone from Perry's Roofing were informed that it was proposed that Prime Metal workers were going to commence the task of removing the components of the edge protection. The workers had not been instructed at that point to dismantle the edge protection.
Mr Higham and Mr White then commenced to remove the metal handrails of the edge protection on the warehouse roof.
Mr Higham and Mr White were standing on the roof. Mr Higham saw Mr White slide the top rail off towards the end of the roof where the power lines were and said to Mr White, "Slide it back the other way so you're not counter levering it off the side of the roof".
Mr White said, "It'll be ok" and Mr Higham replied, "Whatever". Mr Higham then began to slide the bottom rail out away from the power lines.
As Mr White slid the handrail out Mr Higham saw that the handrail was getting closer to the power lines and he said, "Stop, stop, the power lines". Mr White looked over to the end of the handrail. Mr Higham saw that it was very close to the power lines. Mr Higham then saw a white light appear between the power line and the handrail. He said it looked like the handrail was sucked towards the power lines. The handrail and the power lines connected.
Mr White had both hands on the handrail and began shaking and screaming and after a few seconds he went stiff and fell on his back, still holding the handrail in both hands, with one end on his stomach and the other end contacting the power line.
Mr Higham was approximately two metres away when Mr White fell on his back. He ran over and tried to kick the handrail out of Mr White's hands with his right leg. He heard a loud explosion and received flash burns to his legs which forced him back. He saw flames coming off Mr White's chest to about 50cm in height.
Mr Higham and the other workers then jumped onto the lower roof and sat on the brick wall of the building and waited for emergency services to arrive.
A later examination showed burns on the handrail and also on Mr White's body as the handrail was lying across his stomach area. There were burn marks on the roof where Mr White had stood. Mr White died on the roof.
Fire and Rescue NSW contacted Endeavour Energy who attended the site and isolated the power lines.
Mr Higham suffered serious partial thickness burns to both legs and spent two weeks in Concord Hospital. He returned to hospital twice weekly for a change of dressing and was regularly seeing a psychiatrist to deal with the trauma of the incident.

[8]

Riverwall Constructions

The Scope of Works was prepared by Silver Wolf Projects Pty Ltd (Silver Wolf). The Scope of Works indicated in the general notes that services were required to be isolated for a safe working space. It annexed photographs which showed the power lines at the rear of the warehouse. Riverwall Constructions received the Scope of Works on 7 February 2019.
At the time of the incident Riverwall Constructions had in place a Project Plan that included site-specific work health and safety information for the site. The Riverwall Constructions WHS Manual required that a subcontractor's SWMS be site-specific. The Project Plan stated that: Riverwall Constructions was responsible for risks related to its work and that subcontractors must provide Riverwall Constructions with a copy of their SWMS for high risk construction work activities. It also stated that contractors working on the site were responsible for conducting risk assessments and preparing a SWMS for high risk construction tasks for which they are responsible.
The Project Plan specified that the Construction Manager for Riverwall Constructions (Mr Dedes) was to "inspect the site prior to work commencement" and to "record and assess site-specific risk and propose additional site-specific controls related to the project".
The Project Plan did not contain any reference to the existence or risk of power lines at the site.
Endeavour Energy did not receive a request to isolate the power to the power lines at the rear of the warehouse before the incident occurred on 11 February 2019.
Mr Dedes requested Perry's Roofing to complete a site-specific SWMS for the re-roofing of the building.
On 7 February 2019, Mr Dedes obtained the SWMS from Perry's Roofing titled "Asbestos re-roofing" (PX 1, Tab 10) and conducted a "high level" review of the SWMS to check that it had been signed by the relevant workers and that it was site-specific.
The SWMS identified the potential hazard of "electrocution" during the task of laying blankets, roof sheets and flashing. It specified the control measure of ensuring that leads and tools were tagged and suspended off the ground.
The SWMS did not refer at all to the power lines at the site.
The Riverwall Constructions Work Site Checklist (PX 1, Tab 11), against which the SWMS was checked, was completed by Mr Dedes on 9 February 2019 but it did not mention power lines at all.
Riverwall Constructions did not identify the risk of power lines at the site.
No changes to the SWMS were requested by Mr Dedes.
Mr Dedes visited the site on 32 occasions between 21 December 2018 and the date of the incident. Mr Dedes stated that he did not see the power lines in close proximity to the roof at the rear of the building.
Mr Dedes conducted site inductions for some of the workers. However, Mr Dedes did not raise at those inductions the risk associated with electricity or the existence of the power lines.
Toolbox talks were conducted by Mr Dedes. However, Mr Dedes did not raise at those toolbox talks the risk associated with electricity or the existence of the power lines.
Riverwall Constructions had engaged Perry's Roofing to complete roofing repairs on other jobs in the months prior to the incident on 11 February 2019.
On some of those jobs Perry's Roofing had notified Riverwall Constructions that overhead power lines had been identified as a hazard.
On those occasions Riverwall Constructions made the necessary arrangements to have tiger tails installed on the power lines or to have the power lines de-energised. Tiger tails are a useful indicator of the presence of power lines. However, they do not protect a worker from the risk of electrocution or electric shock.

[9]

Mr Dedes

Mr Dedes had been employed by Riverwall Constructions in the period 2009-2010 and again from 2014 to the date of the incident.
Mr Dedes had over 30 years of experience in the construction industry and held the following certificates: 1. Builders Business Management Course (1993). 2. Elevating Work Platform Association Yellow Card (2007). 3. OHS General Induction in Construction Work in New South Wales (2008). 4. Certificate IV in Building and Construction (Building) (2012). 5. Diploma of Building and Construction (Building) (2012). 6. Applied First Aid.
Mr Dedes' role as Construction Manager was to manage the logistics for the works. This included coordinating with the insurer, the insured and the contractors to ensure the construction work was completed in accordance with the approved Scope of Works.
Mr Dedes attended the site daily to ensure that work was progressing, to provide progress reports and photographs to the insurer and to ensure that the factory was kept secure at the end of each day.
On 21 December 2018 Mr Dedes visited the site to conduct a visual inspection of the internal damage to the roof of the building as part of the "Make Safe" works. During this inspection, Mr Dedes identified the need to engage specialist contractors to monitor the asbestos levels and remove the asbestos from inside the warehouse. Mr Dedes also requested Perry's Roofing to attend the site to do an evaluation of the roof.
On 9 February 2019 Mr Dedes completed a Construction Work Site Checklist for the internal factory.
On the same date Mr Dedes asked workers on site to sign a "Record of a Toolbox Talk". However, there was no toolbox talk held or any discussion about hazards on site.
On 8 February 2019, during one of Mr Dedes' visits at the site, he told Mr Holloway that a boom lift was too close to the power lines at the front of the building and that the boom lift needed to be moved. During that discussion, the following was said: Mr Irving: "You know the power lines out the back are dangerously close, like really close to the building". Mr Dedes: "I don't recall power lines out the back". Mr Irving: "Yeah, they are out the back and they are pretty close to the building". Mr Dedes: "Oh really, just don't go near them".
The conversation occurred at the left side of the site near Mr Daniel Te Riini, another worker of Prime Metal. Mr Te Riini overheard some of the above conversation and recalled Mr Dedes saying, "Don't worry about it, just don't touch them".
Mr McKenzie was also present on site and heard Mr Irving raise concerns to Mr Dedes that the power lines were too close and that workers were afraid to take the steel barge off the end. Mr McKenzie recalled that Mr Dedes' response was: "Just don't go near them".
Mr Dedes stated that he does not recall any workers on site raising concerns with him in relation to the rear power lines.
Mr Dedes was in a position of authority to rectify safety risks present on site.
On one occasion prior to the incident, Mr Perry observed that an energised crane rail of 200,000 volts was about a metre away from where workers would be situated on the roof while undertaking the works. Mr Perry informed Mr Dedes of his concern and said that an electrician should be called to de-energise the crane rail. Mr Dedes agreed. Mr Dedes organised for an electrician to remove the risk of electrocution relating to the crane rail before work commenced.
On or around 5 February 2019, during a walk-through of the site, Mr Dedes identified an issue with an electrical cable inside the warehouse and organised for an electrician to rectify the issue and to isolate the power.
Mr Dedes was at the site on 7, 9 and 10 February 2019 and submitted progress photos to another Riverwall Constructions employee. The power lines were visible in the background of those photographs. However, Mr Dedes stated that he did not observe the power lines running parallel to the rear of the building at the site.

[10]

Perry's Roofing

Mr Perry's qualifications included metal roofing, slate roofing, tile roofing, a handrails ticket and a scaffolding ticket. Perry's Roofing employed six workers.
Perry's Roofing was responsible for replacing the roof and identifying the hazards and risks involved in the work to be performed on the roof. It carried out safety inspections at the site and prepared the SWMS for the roof replacement.
On every job Mr Perry got on the roof to check for safety hazards.
Perry's Roofing owned the edge protection and was responsible for its installation around the perimeter of the roof.
Perry's Roofing arranged for a scissor lift and a crane to be used on the site and provided the new roofing material for the building.
Perry's Roofing engaged Prime Metal to do the majority of the roofing work and Mr Perry, on behalf of Perry's Roofing, had responsibility for Perry's Roofing and HiVis Boys workers. This required him to identify site-specific hazards and risks and provide supervision.
On 2 February 2019, prior to the works commencing, Mr Perry attended an initial meeting at the site with Mr Dedes, Mr Holloway, Mr Marmont and Mr McAskill to discuss how the work was to be safely performed. Mr Dedes conducted this meeting.
On 4 February 2019 Mr Perry, on behalf of Perry's Roofing, prepared the SWMS for "Asbestos re-roofing". The SWMS was submitted to Riverwall Constructions on 7 February 2019.
The SWMS did not include the erection or removal of the edge protection from the perimeter of the roof, nor did it identify the risk of working near power lines.
The SWMS was signed by Mr White and Mr Higham.
Mr Perry first observed the power lines at the rear of the building on the first occasion that he accessed the roof of the building on 8 February 2019. Mr Perry formed the view that the power lines were several metres away from the roof and he did not consider the proximity of the power lines to the edge of the roof to be a hazard.
Mr Perry accessed the roof again on the mornings of 9 February and 11 February 2019 to observe the progress of the job, whether it was being completed correctly and safely, and whether there were any new or deteriorating hazards. Mr Perry did not consider that there were any hazards on these occasions. Mr Perry never raised the issue of the power lines with Riverwall Constructions or Mr Dedes.

[11]

Prime Metal

Prime Metal did not submit a quote for the job, nor did it order materials or supply any personal protection equipment.
Prime Metal only supplied labour for Perry's Roofing. On some occasions the job would be small enough for Mr Holloway and Mr Marmont to complete. On bigger jobs, Prime Metal would subcontract additional workers to assist in completing the work.
All work at the site was done at the direction of Perry's Roofing and it was Perry's Roofing who informed Prime Metal what work was to be done.
Prime Metal did not have any safety system in place in relation to working near the power lines. For the work at the site, Prime Metal relied on the Perry's Roofing SWMS and its own visual assessment of the site.
Prior to starting the job, Mr Holloway and Mr Marmont attended the site with Mr Perry who said what he wanted done and how to complete it. Neither Mr Holloway nor Mr Marmont identified the power lines at the rear of the building to be a risk as the power lines were not on the site and doing the work did not involve the power lines.
On Friday, 8 February 2019, both Mr Holloway and Mr Marmont saw the power lines at the rear of the site but did not consider them to be a risk. Mr Holloway and Mr Marmont had been informed that workers had concerns about the power lines. Neither Mr Holloway nor Mr Marmont informed Riverwall Constructions or Mr Dedes of these concerns.
On Sunday, 10 February 2019, Mr Holloway noticed the power lines when he was on the roof but considered that they were low and "below the building".
Prime Metal had between 7 and 19 contractors working at the site over the course of the project. On the day of the incident, all seven workers at the site were engaged by Prime Metal.
Mr White commenced working with Prime Metal on 17 December 2018 as a labourer. Prime Metal understood that Mr White had previous experience with another roofing company. Mr White was not directly employed by Prime Metal, but the arrangement was that Prime Metal would pay Mr White upon receipt of an invoice from Mr White. Mr White was told to do general labouring tasks. He was supervised by Prime Metal. Mr White carried out work at the site from Friday, 8 February 2019 to Monday, 11 February 2019.
Mr Higham had been carrying out work for Prime Metal for two days prior to the incident. Mr Higham was not directly employed by Prime Metal, but the arrangement was that Prime Metal would pay Mr Higham upon receipt of an invoice from Mr Higham. Mr Higham was a carpenter by trade and had completed training in general construction and working at heights. He had previous experience in working on roofs and repairing metal roofing.

[12]

Relevant Guidance Material

Clause 166(1) of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) provides that a person conducting a business or undertaking (PCBU) at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line.
Clause 166(2) of the Regulation provides that if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from any overhead or underground electric line, the PCBU at the workplace must ensure that: 1. A risk assessment is conducted in relation to the proposed work. 2. Control measures implemented are consistent with: 1. the risk assessment; and 2. if an electricity supply authority is responsible for the electric line, any requirements of the authority.
Clause 299(1) of the Regulation provides that a PCBU that carries out high risk construction work must, before such work commences, ensure that a SWMS for the proposed work is prepared or has already been prepared by another person.
Clause 291(k) of the Regulation provides that "high risk construction work" includes "work that is carried out on or near energised electrical installations".
The WorkCover NSW Code of Practice, Work Near Overhead Power Lines dated July 2006 (PX 1, Tab 12) required a safe approach distance of three metres to be maintained from overhead power lines up to and including 132,000 volts. This Code of Practice was freely available on the SafeWork NSW website prior to the incident and provided practical guidance on risk management principles.
The WorkCover NSW Code of Practice, Safe Work on Roofs, Part 1: Commercial and Industrial Buildings dated 2009 (PX 1, Tab 13) stipulated that a four metre distance should be maintained from power lines where metal is used. This Code of Practice was also freely available on the SafeWork NSW website prior to the incident.
Australian/New Zealand Standard AS/NZS 4994.2-2009 Temporary Edge Protection, Part 2: Roof Edge Protection - Installation and Dismantling (the Standard) (PX 1, Tab 14) required consideration of the proximity to power lines during planning of the work and during the development of the SWMS. The Standard also said that employers must ensure that workers possess sufficient knowledge and be given adequate training. The Standard pointed out that a person does not need to have direct contact with power lines to receive a fatal shock.
The WorkCover NSW Code of Practice, Construction Work dated July 2014 (PX 1, Tab 15) provided general WHS guidance on what is required in SWMSs.
The Safe Work Australia General Guide for Working in the Vicinity of Overhead and Underground Electric Lines dated 2014 (PX 1, Tab 16) cautioned at p 2 that a close approach to energised conductors may allow a flashover or arc, a risk which increases as the line voltage increases.
The Australia Scaffolds User Manual for Roof Edge Protection (PX 1, Tab 17) said at par 7.5 that where edge protection is in close proximity to power lines, the handling of steel rods and other long metal items should be carried out in a manner that preserves the safe minimum distance of four metres.

[19]

Systems of Work before the Incident

Riverwall Constructions had an Integrated Management System (IMS) that provided a framework for workers and management. The IMS was reviewed by an independent consultant in 2018. The improved IMS had not been fully implemented at the time of the incident.
The IMS included: 1. Work Health and Safety Policy, Code of Conduct Policy, Compliance Policy, Standards of Employee Performance Policy, Hazardous Manual Tasks Policy. 2. Site-Specific Project Plan and project manuals. 3. SWMSs and flowcharts. 4. IMS audit form. 5. Standard operations procedures. 6. Safety data sheets. 7. Training materials.
Riverwall Constructions also had the following systems in place: 1. Contractor management procedures, including a Contractor Safety Management Checklist, SWMS Review Checklist, Site Induction Checklist and a Subcontractor Introduction and Application Pack. 2. Procedures for training construction/project managers in the systems-based risk management processes. Construction/project managers were to ensure all personnel and contractors complete the required documentation. 3. Procedures for training employees in the IMS and conducting monthly management meetings.
Riverwall Constructions had a General Site Activities SWMS which contained a risk assessment in relation to the most common risks at a site, including hazardous tasks and the set-up of electrical supply.
Mr Dedes required Perry's Roofing to complete a site-specific SWMS for the re-roofing of the building.
Mr Andrew Mamasioulas stated at par 72 of his affidavit that he placed a great deal of reliance on Mr Dedes. Mr Dedes was required to and did undertake his own site-specific risk assessment. Mr Dedes conducted a review of the Perry's Roofing SWMS to check that it was site-specific, that it addressed the issues that needed to be addressed and that it had been signed by Mr Perry and his employees. However, Mr Dedes failed to identify that the SWMS did not address the risk of electrocution posed by the overhead power lines.
An independent report was produced by Silver Wolf. The report included photos of the site taken by a drone, one of which depicted the area of the roof where the incident occurred and power lines running near to the side of the roof. Mr Andrew Mamasioulas stated at par 73 of his affidavit that that he would have expected Mr Dedes to read this report and identify the risk of electrocution from working near power lines and take appropriate precautions.
A site-specific Project Plan was prepared for the project. The Project Plan stated that Riverwall Constructions was responsible for controlling risks related to work done at its sites. It said that contractors working on the site were responsible for conducting risk assessments and preparing SWMSs for high risk construction tasks they undertook.
In par 84 of his affidavit Mr Andrew Mamasioulas acknowledged that the "Construction Work Site Checklist", against which the SWMS was checked by Mr Dedes on 9 February 2019, did not mention power lines. Neither Perry's Roofing not Riverwall Constructions identified the risk of power lines at the site and no changes to the Perry's Roofing SWMS were requested by Mr Dedes.
Mr Andrew Mamasioulas has never been able to talk to Mr Dedes about the conversation he had with the contractors relating to the proximity of the power lines (referred to above). This is due to a mental breakdown Mr Dedes suffered immediately upon becoming aware of the incident.
Mr Andrew Mamasioulas stated that he is mystified as to why Mr Dedes did not respond to the contractors' warnings of the proximity of the power lines. On many previous occasions Mr Dedes had identified a risk caused by power lines, stopped all work and removed the risk before recommencing work.

[24]

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. Riverwall Constructions knew of the risk. In any event the risk was obvious and foreseeable as there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was high. Young and relatively inexperienced workers were dismantling handrails while in close proximity to the power lines. 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. These steps should have been taken long before any worker stepped onto the roof. 5. There was no great burden or inconvenience in these steps being implemented. 6. Two young labourers were put at risk of death or serious injury. Mr White died as a result of being electrocuted. Mr Higham suffered serious flash burns to both legs. 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. Mr Dedes, who was the senior Riverwall Constructions person at the site, had his attention drawn by contractors not only to the existence of the power lines, but also to the danger they posed to workers. Riverwall Constructions does not dispute that these blunt warnings were dismissed in a most offhanded way. 9. The Scope of Works contained photographs which showed the power lines. They were clearly visible to anyone who cared to look. The Project Plan stated that Riverwall Constructions was responsible for risks related to its work. Riverwall Constructions checked the Perry's Roofing SWMS but failed to realise that the SWMS did not deal with the risk posed by the power lines. 10. Counsel for Riverwall Constructions submitted that there is no allegation that Riverwall Constructions had to identify the power lines or the risk that they posed, as that requirement was imposed on Perry's Roofing (MFI 2, par 9). I reject this submission. Riverwall Constructions had to check that the Perry's Roofing SWMS dealt thoroughly with all hazards. It could only properly check whether Perry's Roofing had it right, by giving its own independent consideration to the site and its potential hazards. 11. Counsel for Riverwall Constructions also submitted that while the existence of the power lines was brought to the attention of Mr Dedes three days before the incident, there is no pleaded allegation that Riverwall Constructions failed to take action in those three days, and no charge of that failure constituting an offence (MFI 2, par 38). The underlying premise of the submission is that the failure of Mr Dedes to take appropriate steps after those conversations is not important in relation to the objective seriousness of the offence, or at the very least that undue weight should not be given to that agreed fact. 12. The initial failure to spot the inadequacies in the Perry's Roofing SWMS (it was generic and not site-specific) was bad enough, but there was an egregious failure by Riverwall Constructions to make a proper assessment of the Perry's Roofing SWMS, after Mr Dedes had been informed that the power lines were there, and that contractors on site perceived them to be a hazard. These matters are most relevant to the assessment of objective seriousness. 13. I accept the submission of counsel for the prosecutor that Riverwall Constructions breached its duty to properly consider the adequacy of the Perry's Roofing SWMS every day until the incident occurred.
Counsel for the prosecutor submitted that the objective seriousness of the offence was well into the high range (MFI 1, par 18). Counsel for Riverwall Constructions submitted that the objective seriousness fell into the mid range (MFI 2, par 45), and modified this in oral submissions by accepting that it might be in the high end of the mid range.
For the reasons set out above I find that the level of culpability of Riverwall Constructions is in the high range.

[28]

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 which resulted in the death of Mr White and the injury to Mr Higham: SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261. I assessed the culpability of Perry's Roofing as being in the high range: Perry's Roofing at [151]-[152]. I imposed a fine of $600,000 before a 25% discount for an early guilty plea. I note that the fine was moderated because of a reduced capacity to pay: Perry's Roofing at [173].
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 Riverwall Constructions. 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 the culpability of Riverwall Constructions was greater than that of Perry's Roofing, for the following reasons.
True it is that each had a different role to play on the site. However, both had the same duty under the Act - the duty to ensure safety, so far as is reasonably practicable: s 19(1) of the Act. The duty to ensure safety requires a person to eliminate risks to health and safety, so far as is reasonably practicable: s 17(a) of the Act. If risks cannot be eliminated, then they must be minimised: s 17(b) of the Act.
Riverwall Constructions had overall supervision on the site. It had an obligation to check the Perry's Roofing SWMS. It had an obligation to inspect the site prior to commencement, to record and assess site-specific risks, and to propose suitable site-specific controls (PX 1, Tab 2, Agreed Fact 61).
The most senior and experienced person on the site was Mr Dedes. He had the authority and the power to ensure safety and direct how each contractor should do its work.
Mr Dedes was specifically warned by the conversation with Mr Irving of the existence of the power lines and the danger posed by them. It defies belief that, knowing of the danger and the risk, he did absolutely nothing. Under s 244 of the Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. The warning to Mr Dedes was a warning to Riverwall Constructions.

[31]

Victim Impact Statements

The defendant was convicted at the Sentence Hearing on 30 August 2022.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person: s 27(2)(a).
A Victim Impact Statement may be tendered to the court only by the prosecutor: s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division: s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement: s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate: s 30E(1).
By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community: s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate.
In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account on the basis that they demonstrate that the harmful impact of the death of Mr White on family victims is an aspect of harm done to the community.
The court received the written Victim Impact Statements of: 1. Mrs Rosalia White, the mother of Mr Joel White (PX 3). 2. Mr David White, the father of Mr Joel White (PX 4). 3. Ms Cayla Kabourakis, the twin sister of Mr Joel White (PX 5). 4. Ms Erin Marturano, the sister of Mr Joel White (PX 6). 5. Ms Demi Kovacs, the partner of Mr Joel White (PX 7).
I will restrict my consideration of the matters in the Victim Impact Statements to those topics specified in s 28(2), referred to above. Counsel for the defendant tendered a version of the Victim Impact Statements which objected to a small number of words and phrases, which were highlighted (DX 2). I will take into account the perceptions of the family victims concerning what they saw as to the failings of Riverwall Constructions, as evidence of their belief and state of mind, but not as evidence of any breach of the Act.
The five family victims read their statements to the court. As I said in my judgment in Perry's Roofing at [182], it was heart rending to listen to each of these grief-stricken and shattered people read through their statements and to understand the devastating effect upon these family members of the breach of duty committed. I only wish that every employer in New South Wales could be required to watch a video of the Victim Impact Statements in this case being read in open court.
As I said in my judgment in Perry's Roofing at [183]-[184], Mr Joel White was obviously a much-loved young man. He was humble, loyal and caring. He was a friend to everyone he knew. He was the life of every party. The five family victims who read their Victim Impact Statements will never be the same. Joel will always be with them. Some common threads run through the statements. All of the family victims are depressed, many are on medication and some have suicidal ideation. All have had medical assistance with their mental health, but there has been little improvement for any of the family victims. Their interpersonal relationships have deteriorated. Their ability to work has been affected, and in broad terms, their ability to enjoy life has been almost destroyed. It is hard to see any of them recovering to any significant degree. It has taken some years for this prosecution to come to court. One can only hope that once this case is finished, one small aspect of their stress and grief will be over.
As I said to the family victims after the reading of their statements had concluded, they have through their statements paid tribute to Joel, and greatly assisted the court to understand the harmful impact of the death of Mr White on his family, partner and friends. I take this into account on sentence, as an aspect of harm done to the community, as required under the sentencing legislation.

[33]

Penalty

My orders are: 1. Riverwall Constructions Pty Ltd was convicted on 30 August 2022. 2. The appropriate fine is $800,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Riverwall Constructions Pty Ltd to pay a fine of $600,000. 4. Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Riverwall Constructions Pty Ltd to pay the prosecutor's costs agreed in the amount of $41,300.11. 6. Pursuant to s 238 of the Work Health and Safety Act 2011 (NSW): a. Within six months of the date of these Orders, the defendant is to fund (to a limit of $20,000) the development and production of a de-identified educative animated video (the project) by a suitable external provider that addresses: i. the incident in which Mr Joel White and Mr Higham (the workers) were exposed to a risk of death or serious injury on 11 February 2019 (the material date); ii. the risk to which the workers were exposed on the material date; iii. the content, nature and operation of a suitable safe system of work that would have reduced the risk to which the workers were exposed on the material date as far as is reasonably practicable; iv. other guidance material applicable to safe work on roofs and near power lines as deemed appropriate by SafeWork NSW; b. The management of the project and the provider will be undertaken by SafeWork NSW; c. The content of the project and the provider of the project are to be approved by SafeWork NSW; d. The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, is to be held by SafeWork NSW; e. The video is to bear the logo of SafeWork NSW and the waratah emblem of the State of New South Wales; f. The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre of any change of address for service; g. Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

Parties

Applicant/Plaintiff:

SafeWork NSW

Respondent/Defendant:

Riverwall Constructions Pty Ltd

Legislation Cited (4)

Work Health and Safety Regulation 2017(NSW)

Fines Act 1996(NSW)

Work Health and Safety Act 2011(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (29)

ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 17, 19, 32, 238, 244 Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299 Cases Cited: Baumer v R [1988] HCA 67; (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 Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Perry's Roofing Pty Ltd [2022] NSWDC 261 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (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; (2001) 109 IR 316 Texts Cited: Australia Scaffolds User Manual for Roof Edge Protection Australian/New Zealand Standard AS/NZS 4994.2: 2009, Temporary Edge Protection Part 2: Roof Edge Protection - Installation and Dismantling Safe Work Australia, General Guide for Working in the Vicinity of Overhead and Underground Electric Lines, 2014 WorkCover NSW, Code of Practice, Safe Work on Roofs, Part 1: Commercial and Industrial Buildings, 2009 WorkCover NSW, Code of Practice, Work Near Overhead Power Lines, July 2006 WorkCover NSW, Code of Practice, Construction Work, July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Riverwall Constructions Pty Ltd (Defendant) Representation: Counsel: P Gow (Prosecutor) M Shume (Defendant)

[2011] VSCA 145

[2005] HCA 25

(1988) 166 CLR 51

(2016) 93 NSWLR 338

(2000) 49 NSWLR 610

(2011) 34 VR 1

(2011) 244 CLR 462

(2010) 77 NSWLR 540

(2005) 228 CLR 357

(2011) 244 CLR 120

(2006) 66 NSWLR 566

(1988) 164 CLR 465