SafeWork NSW v Tolputt

The legislation

1. Section 28(b) provides: While at work, a worker must: … (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons …
2. The defendant was a worker within the meaning of the section.
3. Section 32 relevantly provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
4. The maximum penalty applicable in this case is $150,000. I pause here to note that Mr Docking, who appeared for the prosecutor, drew my attention to the fact that s 32 provides for two categories where an offence is committed by an individual. One category provides for the maximum penalty of $150,000, the other provides for a maximum penalty of $300,000. He further drew my attention to different interpretations and whether truly the category of offence imposing the maximum penalty of $300,000 was appropriate. It tended to become something of an academic point in light of his instruction that this was a $150,000 case and not a $300,000 case. In any event, I have satisfied myself with the fact that it is a $150,000 case, by reason of the way the amended summons is pleaded. The $300,000 category requires that the offence be committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking. It may have been the fact that the defendant was carrying on a business or undertaking. If that was so, it was not pleaded as such. At least that is the way I read the amended summons.

The evidence

1. The prosecutor tendered an agreed sentencing bundle of documents (Exhibit PX 1). Also tendered were extracts from records of interview that had been conducted with Mr Bradshaw, Mr Hanscombe and Mr Jessie Powell.
2. The defendant relied on two affidavits of himself. One was sworn on 29 August 2017 and the other on 31 August 2017. The former related to his financial position. The latter put forward evidence in mitigation.
3. The defendant also tendered an extract from a record of interview with Mr Martin. He also relied on what might be called character evidence. In that regard, there was a reference from Mr Gesling and there were affidavits from Julie Edwards, Benjamin Ward and Graeme Baker.
4. The defendant was present throughout the proceedings and he gave evidence and was cross-examined.

Facts

1. The parties provided an Agreed Statement of Facts which I summarise.
2. The defendant, at all material times, was a self-employed tree-climbing contractor who performed tree and rope access work including for persons conducting a business or undertaking. He was a qualified Level 3 Arborist, and had been in the tree industry for a long time and was very skilled. He had before 1 June 2015 completed numerous jobs for Bradshaw Tree Services Pty Ltd (BTS). On 1 June 2015, he was contracted by BTS to remove a tree.
3. In April 2015, the Central Coast was hit by a severe storm. The result was a tree fell onto a house on the property. The tree was a 17m bark tree. Most of its foliage and branches were directly overhanging the roofline. The property was a steep block, sloping away from the road. Access to the property was limited.
4. BTS was contracted to inspect the fallen tree and remove it. Mr Bradshaw, the sole director of BTS, conducted his inspection on 27 May 2015 and completed a "BTS Safety Analysis". He contemplated in that analysis "a process that the surrounding trees were to be used as lowering points to swing sections of the canopy that were over the roof and then lower them to the ground at the rear of the house. The process involved using an experienced climber with a team of labourers to drag branches and parts of the tree from the bottom of the back yard to the top of the property safely with the wood chipper to be used last".
5. Mr Bradshaw arranged for the following people to attend the property and remove the tree: 1. The defendant was contracted as a specialist climber to access and dismantle the tree; 2. Mr Jessie Powell (a BTS worker), to operate the chainsaws to cut felled section of the tree into smaller pieces for removal from the property; 3. Mr Ashley Powell of IMS as Site Supervisor. IMS was a labour hire organisation; 4. Mr Ashley Powell to provide five ground workers from IMS to drag branches and small sections from the rear of the property to the road. The labour hire workers included: 1. Benjamin Martin; 2. James Amson; 3. Michael Bell; 4. Adam Hanscombe; and 5. Blake Currie.
6. On 1 June 2015, Ashley Powell went to see Mr Bradshaw at 6:00am and picked up ropes integral to the work method outlined in the BTS Safety Analysis, and a harness and other equipment, to take to the property. The harness supplied was a tree harness, not a fall arrest harness which would have been necessary for roof work. The ropes were to assist in supporting the damaged tree during dismantling and the harness was to be used by a worker to access the roof to clean it of branches and debris following the tree removal. Mr Bradshaw also provided a copy of the BTS Safety Analysis to Ashley Powell.
7. Ashley Powell headed towards the property, but following a telephone call, diverted to attend a school to resolve a public safety issue.
8. Jessie Powell and the defendant arrived at the property. The defendant had spoken with Mr Bradshaw about the method to be used, but at the property he did not believe it would work. He did not contact Mr Bradshaw to speak to him about that. He did not wait for Mr Powell to arrive. Instead, the defendant decided that the only way to take down the tree would be to climb the roof to go up inside the tree, find the highest point and bring small pieces down on the roof. The pieces were then to be chopped up by the labourers in the backyard and dragged out by hand.
9. Other workers arrived at the site. Jessie Powell spoke with Ashley Powell who informed him that he would be late. Ashley Powell had the BTS Safety Analysis with him and no other worker had seen it. Ashley Powell did not provide any direction that work not start until he arrived.
10. Work commenced. The defendant was in the tree. Other workers assisted him with lowering parts of the tree. A saw was brought up to the roof. The defendant, Jessie Powell and all five labour hire workers were then on the roof.
11. Ropes were used with a pulley system. A load would be tied around that rope then lowered using the rope and pulley. The load would swing slowly as it was lowered.
12. When a branch was coming down, the defendant would stop cutting. Once lowered, Jessie Powell would cut the load into smaller pieces which were then thrown off the roof.
13. At around 9:00am, the smaller branches had all been removed and thrown to the ground below.
14. The defendant rigged the rope to cut a more substantial branch section that was to be lowered. When the cut was completed, the section of approximately one metre in length and 30 to 40 centimetres in diameter fell and swung at an angle out towards the edge of the roof. The defendant told the workers that this load was going to swing and they needed to move as they were in the flight path of the cut section and that this load could knock them all off the roof. They all moved out of the way where they believed it was going to swing.
15. Whilst the section was being lowered using the rope, Mr Amson did not expect it to swing as hard as it did and the section hit Mr Amson's left shoulder. The section then swung across to hit Mr Martin who walked from behind Mr Amson and towards the swinging section. The force of the strike knocked Mr Martin off balance. He stumbled and rolled towards the edge of the roof. Mr Amson brought down the section as quickly as possible, jumped towards Mr Martin and was able to grab Mr Martin's ankle. Mr Martin went over the edge and Mr Amson could not continue to hold him. Mr Martin grabbed the gutter at the roof edge which came off the roof fascia. Mr Martin fell approximately 11 metres to the ground below. He fell directly into the mass of loose foliage and small branches that had collected to a depth of 1.5 metres on the ground thus cushioning his fall.
16. As a result of the incident, Mr Martin sustained a fractured shoulder and required physiotherapy. He also suffered from minor flashbacks and had difficulty sleeping.
17. Had the defendant contacted Mr Bradshaw when he formed a view that the job could not be done as planned, or had he waited for Mr Ashley Powell to arrive, the job would not have been done in the manner it was.

The risk

1. There was a risk to the workers of death or serious injury from: 1. being hit by parts of the fallen tree that were being felled, dropped or lowered from their position during the removal of the tree; 2. falling approximately 11 metres from the roof to the ground below at the property.

Codes of practice

1. There were codes of practice in place at the time of the incident. They included: 1. the "Code of Practice for the Amenity Tree Industry" of August 1998 (the Tree Code); and 2. the "Managing the Risk of Falls at Workplace Code of Practice" of January 2012 (the Falls Code).
2. The Tree Code notes that tree work is hazardous and that each year many people are killed or injured in the tree industry.
3. The Falls Code dealt with falls in a workplace generally. There was a risk of fall within the meaning of the Code.
4. The work being undertaken at the property was a high risk storm damage job.
5. The defendant failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons in contravention of s28(b) of the Act. One particular is expressed as: failing to "after inspecting the site not commencing and undertaking tree felling, dropping or lowering work that required workers to be on the roof". That is acknowledged to be somewhat inelegantly worded. The intent is clear enough. It is that the defendant's work method required workers to be on the roof after he had inspected the site.
6. The defendant was the most experienced and competent person at the property. He should have refused to do the job after inspecting the tree and the surrounding trees. He has acknowledged as much in his affidavit.
7. Further particulars are also somewhat inelegantly expressed. They may be, however, defined as follows. (b) Mr Tolputt undertook the task without: 1. consulting Mr Bradshaw as to an alternative to the plan they had earlier discussed; 2. ensuring that no more than two workers were on the roof; 3. ensuring that anyone on the roof used travel restraint equipment to prevent free fall.
8. The Falls Code provides that persons other than a person conducting a business or undertaking may also have a responsibility for health and safety. The same message is set out in another code being the Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice of New South Wales of December 2011 (the Safety Consultation Code). The Safety Consultation Code provides, in effect, for cooperation and coordination between duty holders responsible for the same task.
9. I note at this point that Mr Bradshaw and the defendant had coordinated and cooperated, but the defendant departed from the plan that had been set by Mr Bradshaw and agreed to by the defendant and did so without coordination and cooperation with Mr Bradshaw.
10. The Falls Code requires that workers exposed to risk of fall should be adequately supervised, have received training and instruction in relation to the work and use fall control measures.
11. At the time, WorkCover had a publication as to "Vulnerable Workers". Basically, they are those who are young or lacking in experience. Messrs Martin, Hanscombe, Currie and Jessie Powell were clearly vulnerable workers. They were all young. Though 34 years old, Mr Amsom may also be classified as a vulnerable worker.
12. The job should not have started without the workers having travel restraint systems.
13. Safe systems for minimising risks of falls were available. Such systems are provided for in The Falls Code, the SafeWork Code and the National Code of Practice for the Prevention of Falls in Housing Construction of SafeWork Australia of April 2010.
14. Approximately one week after the incident, the defendant and Ashley Powell attended the site to complete the removal of the tree. One worker assisted the defendant on the roof. The defendant and the worker on the roof wore harnesses. Two ropes were tied off the front of the house and the top of the roof with secure anchor points to harness the workers in case they fell. Branches were lowered either directly onto the ground or onto the roof and then the ground. The defendant provided this extra safety equipment for the worker because it was not provided by BTS. On this occasion, the defendant provided this extra equipment to guard against any recurring incident.

The sentencing process

1. I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the work health and safety legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.
2. I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.
3. Foreseeability in this case was plain and needs no explanation. This is at two levels. First, risk of injury from swinging timber and from fall from roof were clearly foreseeable. Secondly, the potential consequences of those risks coming home were clearly foreseeable and that included potential fatal injury.
4. Measures were readily available to eliminate the risk in this case.
5. Paragraph 5 of the Amended Summons sets out the measures the prosecutor relies on in this case. The defendant accepts that the measures relied on by the prosecutor were readily available and I have already referred to them. In short, they are not proceeding with the task after inspecting the site, consulting with Mr Bradshaw about an alternative method, ensuring the use of travel restraint systems. Further, there was the measure adopted to undertake the task after the incident and already referred to.
6. General deterrence needs to be considered and allowed for in the penalty. The Court of Appeal has stressed the importance of this in Bulga Underground Operations v Nash [2016] NSWCCA 37. Those operating in the industry must understand that safety is paramount and failure to comply with safety requirements will have consequences. As the Tree Code notes, tree work is hazardous and many people in the industry are killed or injured each year.
7. Specific deterrence must also be factored in. The defendant does not do tree work of the kind he was doing at the time of this incident. He still, however, operates in a risky industry with considerable work at heights. I accept the defendant's evidence and that of others that he is a very safety conscious person and more so since in the incident.
8. There are aggravating factors that may be taken into account. There are two matters. One is the injuries to Mr Martin may be described as substantial - Crimes (Sentencing Procedure) Act 1999, s 21A(2)(g). The other is the offence included a grave risk of death - s 21A(2)(ib).
9. There is a number of factors to be taken into account on behalf of the defendant. He has no prior conviction related to health and safety matters. That has to be seen in the context of operating in the industry for a long time.
10. The offence was not part of a planned or organised criminal activity.
11. The affidavits that I have mentioned attest to the defendant being a person of good character. I pause to note that on many occasions he has volunteered his time and work in the cause and assistance of others. I accept his evidence as to the effect this incident has had upon him and his ready recognition from the outset that the task should not have been undertaken the way it was.
12. I am satisfied that he is unlikely to reoffend and that he has good prospects of rehabilitation.
13. There is some evidence that is somewhat confusing, particularly as to his attempts to contact Mr Bradshaw or anybody from Mr Bradshaw's business before undertaking the task. I am satisfied, however, that he has accepted responsibility for his actions and has done so more or less from the outset.
14. He has pleaded guilty and is entitled to consideration for that. The benefit of a plea of guilty lies essentially in its utilitarian value and, accordingly, normally, the earlier the plea, the greater the value. The plea of guilty was entered practically immediately upon the settling of the amended summons. It was fairly evident from his first interview that this was likely to be a plea. I think in the circumstances, he is entitled to the full benefit of an early plea.
15. The prosecutor has acknowledged frankly that there has been considerable assistance from the defendant and from his lawyers in the course of the investigations and the prosecution of these proceedings.
16. The defendant led financial evidence seeking to call in aid s 6 of Fines Act 1996. The prosecutor frankly acknowledges that the evidence is sufficient for the discharge of the defendant's onus in this regard. I bear in mind the defendant's state of indebtedness, his limited resources, his uncertainty of work, his ongoing business financial commitments, his family situation of non-working wife and five children with another due shortly and also his liability for the costs of these proceedings which the prosecutor estimates could be about $24,000.
17. All these mitigating matters lead to a result that will be less of a fine than would otherwise be imposed in the circumstances. In all the circumstances, including the allowance for the discount for the plea of guilty, I think the appropriate penalty is the sum of $20,000.

ORDERS

1. The defendant is convicted and fined the sum of $20,000 with a moiety to the prosecutor.
2. The defendant is to pay the prosecutor's costs as may be agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2017