SafeWork NSW v Woods

The Works

1. Mr Fielding was originally engaged by QAB as a contract builder to install the new roof over the existing rear verandah. Mr Fielding's original engagement did not include the demolition of the existing roof.
2. Mr Fielding was not told of the change to the scope of works until he arrived on site on 4 August 2020 and found that the existing roof over the veranda had not been removed. The work order/sub-contractors claim sheet provided to Mr Fielding provided for him to be paid $1,968.90 (including GST) for the job. That document did not set out the scope of the work; it predated the change in the scope of works to include demolition.
3. After arriving at the site and noticing that the existing roof of the veranda had not been removed, Mr Fielding telephoned the offender, who told him that he was to remove the existing veranda roof and that he would be paid an additional $400 for that work.

The Incident

1. Shortly afterwards on 4 August 2020, Mr Fielding commenced work. He was to perform the works alone. The building was on a slope and the veranda roof was approximately 6 metres from the ground. The roof had a rotting timber frame and polycarbonate roof sheets with a steel gutter running the length of the roof.
2. Mr Fielding used a ladder positioned at the front of the house to access the roof and walked over to the rear veranda with a view to unscrewing and removing roof sheets. There was no scaffolding or work platform in place adjacent to the veranda. The edge of the verandah roof was unguarded.
3. Mr Fielding was not provided with instructions as to how to conduct the demolition works. He was not given any information to indicate that scaffolding could or would be made available for the job if required.
4. Whilst in the process of unscrewing a roof sheet, the timber baton at the edge of the roof broke and Mr Fielding fell approximately 6 metres through the roof to the concrete path below.
5. Mr Fielding suffered serious injuries as a result of the incident, including a compound fracture to his right femur, a fractured eye socket and cheek, a torn ligament in his right shoulder and various lacerations and chipped teeth.

Systems of Work Prior to the Incident

1. QAB did not have an adequate system in place in relation to the identification of potential hazards or risks prior to a contractor's attendance on site.
2. QAB did not provide Mr Fielding with any site-specific information in relation to potential safety risks or measures that should be implemented to address those risks. QAB had a generic Safe Work Method Statement (SWMS) in place. No site-specific SWMS was completed in relation to the works. QAB's SWMS did not include specific instructions in relation to the use of scaffolding or work platforms. No scaffolding or work platform was present at the building at the time of the incident, nor were there arrangements made for a scaffold or work platform to be available to Mr Fielding.
3. The offender did not provide resources to ensure that QAB had a documented system to identify potential hazards or an adequate SWMS that appropriately addressed the risk of a fall from height. The offender did not provide the resources to ensure that scaffolding or other appropriate solid work platform was installed before commencement of work by Mr Fielding, nor did he inform Mr Fielding that scaffolding would be made available.

Steps Taken After the Incident

1. SafeWork issued QAB with a Prohibition Notice to eliminate the risk of falls from height when demolishing the polycarbonate roof sheets. In response to the notice, QAB arranged for a scaffold to be installed prior to the completion of the work.
2. An Improvement Notice was also issued by SafeWork requiring the offender to review and amend the relevant SWMS.
3. Under the offender's direction, QAB has undertaken the following actions following the incident: 1. emailed a safety bulletin to all sub-contractors and employees, detailing how to respond to an incident; 2. conducted toolbox meetings on individual building sites with subcontractors regarding the new SWMS; 3. developed and implemented an improved Work Health and Safety documentation system and training; and 4. subscribed to Housing Industry Association (HIA) to assist with setting up work health and safety systems and provide training.

Offender's Case on Sentence

1. The offender relied upon two affidavits, one affirmed on 21 August 2023 and the other on 16 November 2023, which included a psychiatrist's report relating to the offender and a psychologist's report relating to one of his adult children. I have taken the entirety of the medical reports into account in coming to an appropriate sentence. I will not set out in detail the content of the psychologist's report because it contains material which should be kept private. The affidavits can be summarised as follows.

Systems of Work After the Incident

1. Following the incident, the offender developed Spanline-specific work health and safety (WHS) documentation, developed through the HIA.
2. The offender, Ms Woods and Mr Wear undertook a WHS supervisor course and required all supervisors to participate in a WHS and induction course held at HIA Coffs Harbour.
3. Safety signage and additional mobile scaffolding and safety gear were purchased to be used on site and at the warehouse. Two office staff members undertook first aid training.
4. A safety bulletin was developed by the offender and Ms Woods following the incident, using information provided by SafeWork NSW and the HIA. This was emailed to all of Spanline's sub-contractors and employees and set out how to respond to safety incidents. The content of the bulletin was discussed at toolbox talks (TBTs).
5. A Spanline-specific SWMS was developed with assistance from consultants at HIA, as was a refresher work health and safety course and induction program, to ensure that no content was missed. TBTs were conducted on building sites to explain the SWMS.
6. TBTs were also held on how to complete the paperwork and assess the safety and readiness of a site following an initial site inspection, as well as how to use the daily assessment report to identify new or developing risks and hazards. The initial site inspection paperwork contained a declaration that the subcontractor understood Spanline's requirements for safe work practice, which was required to be signed by all sub-contractors. An additional "safety payment" was introduced, allowing subcontractors to claim for any time spent completing the initial site inspection paperwork, encouraging engagement with this process. This was to ensure that all safety documentation was accessible to, and engaged with, by subcontractors. The document package included a list of emergency contacts.
7. The offender and Ms Woods also revisited and produced a current Material Safety Data sheet for each product supplied or used by Spanline. The record keeping system for projects was reviewed and improved to ensure accuracy of records and ensure retention of essential documents, and a reminder system was set up to remind subcontractors to maintain compliance with licences and insurance.
8. To coordinate scaffold delivery with the project timeline, Spanline developed a multi-stage check system that would commence with the submission of the contract and photos from the design advisors. Ms Woods would identify, from the "before photos", whether there were any areas which would require workers to work at heights. Ms Woods would mark on the photograph kept in the project folder, and on the tracking cards, that a scaffold would be required. This would then be reviewed by the build team and a temporary or fixed scaffold would be provided as required.
9. The offender and Ms Woods also made efforts to develop a culture of safety within QAB and Spanline, by encouraging staff and subcontractors to take responsibility for safety and to communicate any safety issues or concerns. This was reiterated at staff meetings and TBTs.
10. During the process of selling the business to Mr Wear's company, the offender and Ms Woods insisted that Ms Woods' replacement receive supervisor training, and also that the safety systems developed be transferred;
11. The offender is 48 years of age. He completed Year 10 of high school in Coffs Harbour. He completed a pre-apprenticeship course at TAFE Coffs Harbour, and then a trade apprenticeship with the Australian Defence Force. He obtained his builder qualifications at TAFE Griffith.
12. The offender is a co-director of QAB with his wife, Kylie Woods. QAB purchased the Spanline franchise in about November 2019, about nine months prior to the incident.
13. QAB sold the Spanline franchise to a new owner for approximately $400,000 less than what it had paid for it to Mr Wear. Following the sale of the Spanline franchise, QAB's main business operation was running a caravan park. The offender stayed on as a contractor for Spanline doing carpentry work and assisting with the transition of the business, particularly ensuring that the steps taken following the incident to improve workplace safety within the Spanline business continued to be implemented. The offender and Ms Woods also assisted Ms Woods' replacement with understanding the safety system that they had implemented and would also attend TBTs to ensure the discussions about the safety system were occurring and accurate. The offender also attended projects in which a number of scaffold types were being used prior to commencing work at heights and observed a number of site visits by Mr Wear and his building supervisor.

The Offender's Personal Circumstances

1. The offender and his wife have moved to Queensland.
2. The offender ceased working in the building and construction industry in December 2022 and is currently unemployed. This has affected the offender psychologically, as he had been a carpenter from 1997 and is not qualified for work outside the construction industry. He has no intention to return to the building and construction industry in any capacity. He worked as a courier in Brisbane in July 2023 but ceased this work after two days as he found Brisbane traffic too stressful and found that when he was sitting in traffic, he would ruminate about the incident and the current proceedings. He is unsure when he will return to work or what work he will do.
3. The offender described being significantly affected by the incident and Mr Fielding's injury. He has experienced heightened levels of anxiety, stress, grief and depressed mood, as a result of the incident and his concerns for Mr Fielding's wellbeing, as well as the current SafeWork proceedings. He sought psychiatric opinion as to his mental condition and was diagnosed was experiencing a major depressive episode.
4. The psychiatrist received a history consistent with the affidavit evidence and I accept the psychiatrist's opinion that the severity of the offender's condition is such that he only fit to work 4 hours per day 3 days per week and in a limited range of jobs. I note that the psychiatrist recommended that the offender engage with a psychiatrist once per month and a psychologist for cognitive behavioural therapy once per fortnight, although I expect that the offender could alleviate these costs through being placed on a Mental Health Care Plan by his GP. The psychiatrist also recommended that the offender consider taking appropriate medication. The psychiatrist estimated the costs for that treatment to be in the vicinity of $1,150 per month. The psychiatrist suggested that appointments would be required for 6 months and medication for 1-2 years, but I think both of those estimates are conservative and by reference to the offender's history and life circumstances it is more likely that treatment would be required for a longer, unknown period.
5. The offender reached out to Mr Fielding via text message whilst he was in hospital to offer support to him and his family. He and Ms Woods also sent a gift after he was discharged from hospital. Mr Fielding requested an extra payment from a job that he had previously completed as a means of financial assistance, and QAB made this payment. He has had an in-person discussion with Mr Fielding about his recovery.
6. The offender reported an increase in his consumption of alcohol following the incident to manage his anxiety and depressed mood, from 12 stubbies of beer per week, to 12 per day. He has since reduced this and no longer consumes alcohol daily.
7. Ms Woods has had a number of health issues, including been diagnosed with kidney cancer in 2022. However, she has been treated for this and cleared to work. She will seek registration as a teacher in Queensland and will start working as a teacher in 2024 if her health permits. The offender feels guilt regarding his wife's return to work. He is also concerned about the potential health consequences that this may have.
8. The offender and his wife have an adult child who has complex health conditions. They have significant care commitments in relation to this child and are required to provide financial support for that child.
9. If the offender is required to pay a substantial fine, he and Ms Woods will need to use their savings, and this will likely impact their ability to pay daily living expenses and expenses relating to the care and treatment of their child.
10. The offender took full responsibility for his offending and expressed that he is deeply sorry for the injury that Mr Fielding suffered.

Consideration

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

Objective Seriousness

1. The risks of the work allocated to contractors were well known to the offender. It should have been obvious that steps needed to be taken by QAB, through the offender to control those risks. In relation to the incident, the offender knew that scaffolding was necessary for the work at the site to provide fall protection.
2. By his plea, the offender admits that he did not exercise due diligence by putting in place an adequate system to recognise the risks posed to contractors by QAB's work or to take the site specific safety measures require for the site.
3. The likelihood of the risk coming home was moderate.
4. The risk involved a risk of death.
5. The offence is in the mid-range of objective seriousness.
6. The injuries sustained by Mr Fielding were serious.
7. I have taken into account the maximum penalty for the offence.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Officers of corporate PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large PCBUs will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
2. There is very little need for specific deterrence in this case for the reasons that follow. The incident has had a significant psychological effect on the offender to the extent that he has been forced to retire from the building industry. As a result, the offender is unlikely to reoffend. Further, the incident caused the offender to suffer significant financial loss. He was forced sell the franchise at a $400,000 loss and he is not earning an income at present, while he tries to find suitable work.

Aggravating factors

1. The injury, harm and loss caused by the section 32 offence was substantial: section 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. The injuries sustained were serious and sufficient to establish the aggravating factor.

Mitigating factors

1. The offender does not have a record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is presently 48 years of age.
2. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender comes before the Court without any prior convictions at the age of 48 and is entitled to be considered to be a person of good character.
3. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender has given up work in the construction industry and sold the franchise. I am satisfied that the offender is unlikely to reoffend.
4. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the steps taken after the incident that he has good prospects of rehabilitation. He has always taken this matter seriously and acted in a way to facilitate the course of justice.
5. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender maintained contact with Mr Fielding's family after the incident and expressed his concern for Mr Fielding's welfare. The offender has accepted full responsibility for his failings that led to the injury to Mr Fielding and has expressed his deep sorrow for the offence. I am satisfied that he is genuinely contrite.
6. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. He 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%.
7. The offender did not contend that he had a limited capacity to pay a fine, indicating that he had savings from which he could pay a fine. However, I have taken into account that he is of modest means and cannot work at present as a consequence of the injury to Mr Fielding. His wife intends to go back to work to support the family, including their dependant child who has significant needs, on her wage as a teacher. The investment by the offender in the franchise proved to be a poor one and that has adversely impacted his long-term financial position.
8. This is a unique case where the offender has developed a major depressive episode and suffered financially as a result of the incident. It is another reminder of how wide-reaching and devastating the consequences of a failure to comply with safety obligations can be.
9. In this case, the imposition of a substantial fine would disproportionately impact the offender's wife and dependant child. It would also divert money away from him engaging in the psychiatric care that he needs.
10. The purposes of sentencing have largely been achieved in this case. I intend to impose a Work Health and Safety Undertaking pursuant to s 239 of the Act, which will impact the offender's freedom in the next 2 years to reflect the need for denunciation of the crime and to make the offender accountable for his actions. I will make it conditional on him receiving appropriate psychiatric care to assist him to get back into the workforce

Penalty

1. Wade Woods is convicted.
2. The proceedings are adjourned until 21 November 2025 and the offender is released on giving an Undertaking pursuant to s 239 Work Health and Safety Act 2011 on the following conditions: 1. the offender must appear before the Court if called on to do so during the period of the adjournment; 2. the offender is to be of good behaviour and not commit any offence against the Act on the period of the adjournment; 3. the offender is to seek treatment from a psychiatrist and a psychologist for his mental condition for the period of the adjournment and accept all reasonable directions from those medical practitioners for the treatment of his condition at such intervals as recommended by those medical practitioners, including by taking medication as prescribed by a general practitioner or psychiatrist; 4. the offender is to provide evidence to SafeWork NSW that he is receiving treatment from a psychiatrist and a psychologist for his mental health on or before 22 February 2024; 5. the offender is to provide evidence to the Court on or before 14 November 2025 that he has received treatment from a psychiatrist and a psychologist, as recommended by those medical practitioners, during the course of the adjournment; 6. the offender is to notify the Registrar of the District Court at the Downing Centre of any change of address for service during the term of the Undertaking.
3. The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed.
4. The parties have leave to approach my Associate to relist the matter during the course of the adjournment if any of the conditions of the Undertaking need to be amended.

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: 22 November 2023