On 26 October 2021, the owner of a roofing business was sentenced in the Maroochydore Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his primary health and safety duty under section 19 of the Act.

The defendant operated a roofing business on the Sunshine Coast in partnership with his wife and had done so for more than 20 years. In 2020, the business was engaged by a construction company to undertake roofing work at a duplex property in Peregian Beach. Above a common stairwell, adjoining the apex of the roof, was a clear sheet of polycarbonate sheeting functioning as a skylight.

On 23 April 2020, a site supervisor engaged by the construction company placed two pieces of plywood over the clear sheeting. The plywood was not secured to the roof in any way. Towards the end of the day, the site supervisor removed the pieces of plywood to enable workers to reinstall the ridge cap of the roof, which was immediately adjacent to the sheeting. An employee of the defendant was working on the roof when he stepped on the sheeting, which broke, causing him to fall approximately 5.1 metres onto the brick paving and concrete stairs below. The injured worker sustained substantial injuries, including fractures to his leg, feet, hip, lower vertebrae, wrist and dislocated fingers. He required surgery and eight stitches to his face, and was hospitalised for two weeks. That period of hospitalisation was followed by a week of in-patient rehabilitation and physiotherapy twice per week in the months afterwards. The worker was unable to return to roofing work and no longer works.

The defendant failed to manage the risk of fall from height arising from the hazard of the polycarbonate sheeting by failing to implement control measures such as securely fixing the plywood covering the skylight to the roof or a travel restraint system such as a harness. Those control measures are recommended by the Managing the risk of falls at workplaces Code of Practice 2018.

Following the incident, and in compliance with Improvement Notices issued by Workplace Health and Safety Queensland, the defendant altered his business’ work practices and adopted a new safe work method statement. The defendant was also cooperative in the investigation, including by participating in an interview with WHSQ.

In sentencing, Magistrate McLaughlin had regard to the defendant’s very early plea, his cooperation throughout the investigation and court process, and lack of prior convictions despite being involved in the building industry for many years. His Honour placed weight on the fact that the injured worker was employed by the defendant for many years, was very experienced, and remained highly supportive of the defendant in his character reference provided to the court. The reference spoke very highly of the defendant as an employer and member of the community, and that he had always been safety conscious.

His Honour accepted that the risk could have been minimised by the plywood covering the skylight, and noted that there was an alternative control measure like the use of harnesses.

His Honour had regard to the sentencing principles contained in s.9 of the Penalties and Sentences Act 1992, and took into consideration both general and specific deterrence, denunciation, and the maximum penalty of $300,000. Magistrate McLaughlin observed the maximum penalty showed these matters were viewed seriously by the legislature. His Honour also noted the incident could easily have resulted in death and was foreseeable, but in terms of the defendant’s blameworthiness his breach was not a ‘wholesale failure’ as the hazard would have been obvious to an experienced roofer, and it was unlikely that the injured worker would have fallen through. However, his Honour held this did not excuse the defendant’s failure.

His Honour considered several cases provided by the prosecution as comparable, including Bennett Developments (FNQ) Pty Ltd v Steward [2020] QDC 235 (‘Bennett Developments’); SafeWork NSW v Travis Brown [2017] NSWDC 337 and SafeWork NSW v Ru Dong Li [2018] QDC 189. His Honour had regard to the decision in Bennett Developments, but noted that it was demonstrably more serious than this case, and the blameworthiness there was significantly greater.

Magistrate McLaughlin held that he would have imposed a fine of $35,000.  However, after considering the defendant’s capacity to pay, His Honour convicted the defendant and imposed a fine of $25,000. A conviction was not recorded.

OWHSP contact: enquiries@owhsp.qld.gov.au