SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202 Hearing dates: 4, 5, 6, 8 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements of the offence set out in the Summons filed on 18 March 2019 have been proved beyond a reasonable doubt. (2) I find Landmark Roofing Pty Limited guilty of the offence. (3) I will list the matter for a Sentence Hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable

OTHER – site supervisor and apprentice roofer replacing polycarbonate skylight in roof with metal sheets ̶ apprentice roofer put foot onto an old brittle polycarbonate sheet skylight and fell through the roof – worker died from injuries suffered in fall – neither worker had a fall arrest or restraint system in place at the time of the incident ̶ both workers should have had their safety harnesses connected by a rope to the available static line Legislation Cited: Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A 14, 16, 17, 18, 19, 32, 230, 244, 275 Work Health and Safety Regulation 2017 (NSW), cll 291, 299 Cases Cited: Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373 Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80 Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) [1999] NSWIRComm 453; (1999) 101 IR 239 WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 Texts Cited: "Managing the Risks of Falls at the Workplace" dated April 2016. WorkCover Code of Practice (2009) "Safe Work on Roofs Part 1 – Commercial and Industrial Buildings" Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Landmark Roofing Pty Limited (Defendant) Representation: Counsel: M Moir (Prosecutor) P Barry (Defendant)