SLD Projects Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Mark Prendergast to a risk of death or serious injury.
The maximum penalty for the offence is $1.5 million.
[2]
Facts
The parties tendered an Agreed Statement of Facts that can be summarised as follows.
[3]
Background
The offender conducted a business involving provision of home building construction services, including new home builds and alterations and extensions to existing homes.
Simon La Delfa was the offender's sole director and sole employee. Mr La Delfa managed the business and was personally involved in work undertaken by the offender. He worked alongside and supervised workers engaged by the offender.
The offender was engaged on a project to renovate and extend a residential home (the project) in Forestville NSW (the site). The offender was the principal contractor for the project.
On or around 23 July 2019 the offender engaged Labour Revolution Pty Ltd (Labour Revolution), a labour hire firm, to supply labourers to undertake general labouring duties on the site, including hand demolition work. Labour Revolution had supplied workers to the offender for about one year prior to the incident.
Mr Prendergast was an Irish national who was living in Australia at the time of the incident on a Working Holiday Visa. Mr Prendergast obtained his General Construction Induction Card (White Card) on 23 August 2019 and had been employed by Labour Revolution as a general labourer from 6 September 2019. He was not accredited for High-Risk Construction Work and had not been trained to work at height. Mr Prendergast was assigned by Labour Revolution to work at the site and commenced doing so on 11 September 2019.
The offender had also engaged Raffaele Moretti, a sole trader to undertake carpentry work at the site.
[4]
Systems of work prior to the incident
The offender had not conducted any documented or formal risk assessments for work at the site.
The offender did not provide Mr Prendergast with an induction or any information, instruction or training relating to work, health and safety at the site. He was not advised that he would be working at height.
Mr Prendergast was tasked by Mr Moretti to work on the roof removing "wooden panels". Mr Prendergast could not recall exactly what Mr Moretti told him about accessing the roof or the work to be performed, other than that they were "taking apart the roof" and they were to access the roof using the scaffold.
There were daily toolbox talks, where safety was discussed, conducted on site.
The offender had not prepared a Work Health and Safety Management Plan (WHSMP) for the project. The offender also had not prepared a Safe Work Method Statement (SWMS) or any other documented work procedure relevant to the work being undertaken at the site.
The offender had not implemented a safe system of work for removal of timber battens from the roof joists at the site in the following ways:
1. It did not require use of, nor provide, a temporary or fixed work platform to complete this task.
2. There were no harnesses available for workers to use when they performed work on the roof of the building.
3. There was no direction prohibiting workers from undertaking work on the roof in the absence of the above measures.
The offender had previously erected perimeter scaffolding around the building, which workers could use to access the roof area of the building. This scaffolding was incomplete, with missing handrails, mid-rails and transoms, and its lapboards were not secured.
There were no fall prevention devices or work positioning systems available at the site for use to prevent workers from falling through the roof area of the building, such as fixed or mobile scaffolding, step or ladder platforms, or harnesses.
[5]
The incident
On 12 September 2019 the following workers were working at the site:
1. Mr La Delfa;
2. Mr Prendergast;
3. Timo Bovenberg (Labour Revolution employee);
4. Sebastian Elias (Labour Revolution employee); and
5. Mr Moretti.
It was Mr Prendergast's second day working at the site. The work that Mr Prendergast had been undertaking on the site included moving and dumping heavy furniture into a skip, breaking the ceiling up with a crowbar and disposing of the plaster, pulling nails out of walls, general cleaning and tidying, and removing bricks from the roof while working on scaffolding on the second floor. On the day of the incident, Mr Prendergast undertook work on the roof, which was comprised of roof joists, timber battens and a tarpaulin, approximately three metres above the ground floor below.
At some point that morning, Mr Prendergast and Mr Bovenberg were asked by Mr La Delfa or Mr Moretti to remove wooden battens from the roof joists using a crowbar.
At approximately 11:51am, Mr Prendergast used the perimeter scaffold to access the roof area to complete this work. Mr Prendergast was standing on roof joists approximately three metres above the floor below and was attempting to remove the attached wooden battens using a crowbar, when he fell backwards. Mr Prendergast either landed on a joist that broke underneath him, or he fell through the joists and landed on his head on the ground floor below.
Mr Prendergast was driven by ambulance to Royal North Shore Hospital for treatment of his injuries.
Mr Prendergast sustained the following injuries:
1. multicompartmental intracranial haemorrhage and skull fractures;
2. left distal transverse sigmoid and proximal IVJ thrombosis;
3. left-sided hearing issues; and
4. loss of feeling in the fingertips.
Mr Prendergast developed epilepsy as a result of brain scarring from the injuries that he sustained. He also lost his high frequency hearing and experiences periodic episodes of vertigo.
[6]
SafeWork NSW inspection
After the incident, SafeWork undertook an inspection of the site and issued the following Notices to the offender:
1. A Prohibition Notice, as workers or other persons may have been exposed to a serious imminent risk to their health and safety from falls as the scaffold erected at the site was incomplete due to missing handrails, mid-rails and transoms, and unsecured lapboards.
2. An Improvement Notice, as workers or other persons may have been exposed to a risk to their health and safety from falls from heights as control measures had not been reviewed and revised as necessary following a notifiable incident involving a worker falling from the roof of the building under renovation to the level below.
[7]
Steps taken after the incident
After the incident, the offender complied with the two SafeWork Notices and took the following steps:
1. It prepared an Action Plan for the site to improve health and safety at the site;
2. It prepared a Safe Work Method Statement for "Removal of Timber Battens" at the site, which required the use of a mobile scaffold for the work;
3. Mr La Delfa conducted an inspection of the scaffolding and provided a handover certificate;
4. It prepared and implemented a Work Health and Safety Management Plan for the site;
5. It kept a Safe Work Method Statement for any high-risk construction work at the site;
6. It prepared and implemented a "Trade Information Pack" for sub-contractors which includes information about health and safety at the site;
7. It conducted site inductions for all new workers to the site, and implemented a system to document those inductions.
8. It implemented a system to document toolbox meetings conducted at the site.
[8]
The Offender's Case on Sentence
The offender relied on the affidavit of Mr La Delfa sworn on 27 October 2022. I will not repeat matters already referred to.
Mr La Delfa is the sole director of the offender and has been since 2012. The offender was established by Mr La Delfa's father in 2002. It began primarily as a carpentry business, then in 2012 started undertaking small home building projects. In May 2018, it moved to a project management style of business. At this point, Mr La Delfa became the sole employee.
Mr La Delfa has worked in construction for 20 years. He has a White Card, an unrestricted building licence, and a high-risk work licence issued 6 July 2017.
Mr La Delfa reports that, prior to the incident, the offender had not had any safety incidents resulting in SafeWork prosecution, nor had it been issued a SafeWork Notice, other than those issued in relation to the incident.
[9]
Systems of work prior to the incident
Up to and immediately prior to the incident, the offender's systems of work involved the following:
1. engagement of Hunter Labour Hire Pty Ltd to install steel scaffolding along the perimeter of the building at the site;
2. regular site meetings conducted by Mr La Delfa and informal toolbox talks with workers to discuss the work to be undertaken and any safety issues;
3. Mr La Delfa would attend the site two or three times per week and, on each occasion, would speak with workers about what work was to be undertaken that day;
4. when a new worker started on site, on their first day Mr La Delfa would attend the worksite at 7.00am and take them through the tasks that they would be carrying out and identify potential safety risks that may arise; and
5. when Mr La Delfa was absent, Mr Moretti was responsible for supervising workers at the site.
The training provided to sub-contracted workers was informal and on-the-job. Mr La Delfa would provide this training as well as supervise the workers.
Relevant safety information was communicated verbally by Mr La Delfa. Mr La Delfa considered this method effective, given that the offender's projects were relatively small with only a few sub-contracted workers on any given project.
[10]
After the incident
Immediately after the incident, Mr La Delfa stopped work at the site and administered first aid to Mr Prendergast. He instructed Mr Moretti to contact emergency services for an ambulance.
Work on the site was paused until early October 2019. The first stage of the project was completed in December 2020, and the second stage, involving renovating and moving structural walls on the ground floor, was commenced in February 2021.
[11]
Systems of work after the incident
Following the incident, the offender has ensured that risk assessments of the hazards of working at heights are conducted at each work site and documented.
Further, Mr La Delfa reported that he engaged with the Master Builders Association to obtain assistance in developing and implementing a documented safety management system, implemented until 24 March 2021, that includes a Work Health and Safety Management Plan, an evacuation plan, records of site inductions, documented risk assessments and minutes of toolbox meetings.
From 24 March 2021, the offender has implemented an online safety system, facilitated through HazardCo Australia, a Work Health and Safety Consultant. This system involves workers downloading an application to their mobile phones and using that application to complete site inductions, risk assessments, records of toolbox meetings, and safe work method statements. This system is also used to prepare site-specific safety plans, issue those plans to workers, complete site reviews and create records of toolbox meetings.
Mr La Delfa has engaged with a builder coach to improve professionalism and systematisation of the business since January 2020. Following an introductory workshop, Mr La Delfa subscribed to a monthly coaching membership, which included a call with the coach four times per week and online courses every six weeks.
In July 2020, Mr La Delfa engaged a new builder coach and was still working with the coach at the date of his affidavit. He attends fortnightly meetings with this coach, who makes recommendations regarding project management software and operational matters, like the engagement with HazardCo.
The offender also engaged Southwest Sydney Virtual Systems, a company that supports small- and medium-sized enterprises by providing them with a virtual administrative worker. A virtual administrative worker is engaged three times a week, depending on the workload, and completes the following tasks, amongst others:
1. helping to administer safety checks and implement the safety system;
2. ensuring that contractors have necessary insurance and licences before attending the site;
3. sending a site-specific safety plan to each contractor; and
4. ensuring that a risk assessment has been completed and submitted.
In September 2021, the offender employed a full-time Supervisor responsible for ensuring that the safety system is being implemented at each work site and that safety standards are being complied with.
The offender has purchased three mobile scaffolds, so that at every work site there is a mobile scaffold immediately available if it is needed.
Mr La Delfa also completed a one-day Work Health and Safety course with the Master Builders Association on 1 April 2022. He received a Statement of Attainment for "Working Safely at Heights" and "Apply WHS Requirements, Policies and Procedures in the Construction Industry". The offender's Supervisor has also completed these courses.
Mr La Delfa has also completed first aid training for providing cardiopulmonary resuscitation, basic emergency life support and first aid.
Mr La Delfa recognises that failure on his part to identify potential hazards can have serious consequences for workers on site.
He deposed that the offender's safety systems now go beyond standard industry practice and that he is continually working to improve systems of work and safety.
Mr La Delfa deposed that, for several months after the incident, he would regularly communicate with Labour Revolution and SafeWork NSW to ask after Mr Prendergast.
The offender cooperated with SafeWork NSW during the investigation process, complying with the statutory notices in a meaningful and timely manner, and engaging openly and honestly with SafeWork NSW more generally.
Mr La Delfa acknowledged the offender's responsibility for the safety of its workers and that it failed in that responsibility at the time of the incident.
Mr La Delfa expressed remorse for the injuries caused to Mr Prendergast and stated that he is committed to doing whatever possible to ensure that such an incident does not happen again. He stated that he has been meeting monthly with a psychologist to address the stress and remorse he feels for his involvement in the incident.
[12]
Consideration
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.
[13]
Objective Seriousness
The offence is objectively serious.
The risk of a fall from height from the joists was obvious.
The likelihood of the risk coming home was very high. There was no structure in place to prevent Mr Prendergast's fall. The instructions given to Mr Prendergast were wholly inadequate and the task of removing the battens from the roof joists was completely unplanned from a safety perspective. There were also deficiencies in the scaffolding and other indicia that safety was not a significant priority for the offender.
The steps that could have been taken to prevent the fall were well known in the industry, the subject of a large volume of objective guidance material and actually known by the offender. By its plea of guilty, the offender accepts that it failed in a number of respects particularised in the Amended Summons. Those steps were simple and inexpensive to implement.
The consequences of the risk included a risk of death.
The injuries sustained by Mr Prendergast were very serious. The ongoing effects on him are unknown.
I have taken into account the maximum penalty for the offence.
[14]
Deterrence
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].
It is well known in the construction industry that falls from height are a major cause of death and serious injury. The penalty imposed must bring home to other PCBUs involving the risk of a fall from height, that if they fail to take all reasonably practicable steps to eliminate or minimise the risk that they will meet with condign punishment,
The penalty imposed must also provide for specific deterrence because the offender continues to operate a business in the construction industry. However, it is reduced to some extent by reference to the extensive steps that the offender has taken after the incident to bring its safety systems to a sufficient standard.
[15]
Aggravating Factors
The injury, harm and loss caused by the s 32 offence 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 significant injuries sustained by Mr Prendergast are sufficient to establish the aggravating factor.
[16]
Mitigating Factors
The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated since 2002 without any prior safety breaches.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken significant steps after the incident to upgrade its safety systems and has demonstrated that it has good prospects of rehabilitation.
The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr La Delfa, on behalf of the offender, has accepted responsibility for its failings and expressed remorse for the incident and its impact on Mr Prendergast.
The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
I have taken into account the size of the business operated by the offender. The offender usually undertakes renovation projects of $300,000 or less and has about 3 projects running at any one time.
I have had regard to the comparable case referred to me by the parties: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398. I note that Grandcity was decided before the Court of Criminal Appeal handed down a series of cases in 2019 that are authority for the proposition that the objective seriousness of an offence is increased by the failure to take simple, well known and inexpensive steps in response to a risk with serious consequences: Attorney-General (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35 at [77]-[79], Attorney-General (NSW) v DSF Constructions Pty Ltd [2019] NSWCCA 33 and Attorney-General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 at [19]-[20]. This is such a case.
[17]
Penalty
SLD Projects Pty Ltd is convicted.
The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the plea of guilty.
I impose a fine of $180,000.
The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed.
I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
[18]
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Decision last updated: 22 November 2022