On 7 September 2021, a roofing company was sentenced in the Townsville Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty under section 19(1) of the Act.

The defendant company conducts a business involving residential roofing works, as part of which it subcontracts labour. The defendant was engaged by the principal contractor of a residential construction site to supply and install klip-lok sheeting on an approximately 2.9-metre-high roof. The defendant then engaged a sole trader to undertake the roofing labour at the site. The defendant had previously subcontracted labour works to the sole trader on numerous occasions and guardrail would normally be supplied by the defendant.

The defendant’s initial quote to the principal contractor included the installation of guardrail to the full roof perimeter. The defendant prepared a Safe Work Method Statement (SWMS) relevant to the work activities to be conducted at the site, which identified the potential fall hazards from working at any height and the risk of serious injury from falling from height. It outlined the scope of the works to include “installation of roofing/guttering and downpipes using guardrail” and stipulated that workers must use a work platform and/or a harness where work was conducted at heights of over 2 metres. The defendant did not supply guardrail, or any fall prevention measures for use at the site. It was of the view that it was not possible to install edge protection on the roof at the workplace because flashing was in the way.

On 7 November 2019, workers were present on the roof at the site installing klip-lok roof sheeting. Klip-lok sheets are clipped into place by workers standing on the sheet and pressing down with their foot. The site supervisor, employed by the defendant, was present at the site while that work was being performed. There were no fall prevention measures, such as edge protection, in place and workers were not using a travel restraint system. A labourer employed by the sole trader was on the roof installing the last klip-lok sheet when his right foot slipped, causing him to lose balance and fall over the edge to the ground below. The worker sustained fractures to his right tibia and fibula, requiring surgical repair.

The defendant was charged with failing to comply with its health and safety duty through, amongst other things, failing to ensure that appropriate control measures were implemented before work commenced on the roof and failing to prohibit workers from commencing work on the roof until such measures were in place. The defendant’s failures exposed workers, in particular the injured worker, to a risk of death or serious injury.

In sentencing, Acting Magistrate Peter Smid observed that the company had a Safe Work Method Statement tailored to the site and had a representative at the site on the day. His Honour observed that the breach by the defendant was not a flagrant omission and was not ongoing, with the work taking place over a limited period of time. In the circumstances there was nothing inherently serious about the roof, which was nearly flat and did not have any hidden voids as in other cases. It was noted the worker performing the work ought to have been aware that he should have used control measures, namely a harness, while on the roof but did not.

His Honour took into account the impact COVID-19 had on the company’s profit margin due to the increased price of materials and that the company, while solvent with four employees, was ‘not swimming in spare cash’. Having regard to the balance sheet and letter from an accountant provided to the court, it was observed that the company’s capacity to pay a fine was fairly limited. Regard was also had to the submissions made by defence counsel regarding the personal injuries claim brought against the defendant by the injured worker.

His Honour had regard to the relevant principles in section 9 of the Penalties and Sentences Act 1992, acknowledging the real need for general deterrence. It was noted that specific deterrence was of lesser importance in the circumstances. It was acknowledged that the worker sustained serious, although not life-threatening, injuries.

In sentencing the defendant, his Honour had regard to the defendant’s early guilty plea, its good record and cooperation with the investigation. Regard was also had to the post-incident conduct of the company in changing its practices, although his Honour noted the comments of Judge Fantin in Steward v Mac Plant [2018] QDC 20 regarding the weight to be given to such conduct. His Honour also had regard to the obvious impact the incident had on the sole director of the defendant company, noting the letter from a psychologist tendered by defence counsel. His Honour imposed a fine of $50,000 against the defendant company and did not record a conviction.

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