Details of successful prosecution against E201155

Incident description

The defendant Multi-Run Roofing Pty Ltd (Multi-Run) held duties under s.19(1) of the Work Health and Safety Act 2011 (the WHS Act) being a business that undertook roofing work, including supplying and fitting roofs.

Multi-Run was engaged by a building company to replace the roofs on large sheds at an old brickworks west of Noosa. The sole director of Multi-Run and the director of the building company were brothers.

The total cost of the job at the site was in the order of $4 million. During early July 2014, a quote for roofing work at the site was prepared by the director of Multi-Run and sent to an employee of the building company. This quote was for a sum of $284,000 and specifically included the supply and installation of safety rail. This quote was subsequently referred to and adopted in a contract between the companies, signed by the brothers.

Multi-Run then engaged others to undertake the roofing work at the site, which commenced on or about 14 July 2014. A 62-year-old roofer was one of five workers engaged to undertake such roofing work.

The nature of the work was that a crew of four to five workers would work a section of the roof installing mesh insulation and then Zincalume sheeting. One of the crew was responsible for keeping straight the edges of the sheeting along the gutter, referred to as the “live edge”, which was 5.9 metres above a concrete and rubble surface.

On 29 July 2014, one of the roofers fell almost six metres to his death while working on the “live edge” of a roof at the site. At no stage between the commencement of the roofing work and the incident was safety rail installed on the roof. Had a safety rail been installed on the edge of the roof, this would likely have been effective to stop his fall.

The safety measures employed at the site were the use of a fall arrest harness for the person working the live edge, along with the intended use of one or two scissor lifts positioned beside the gutter and alongside the roofers to provide a physical barrier. At the time of the incident, the deceased was not wearing a harness and no scissor lift was in position to act as a barrier to block his fall. There was conflicting evidence as to whether a scissor lift could have been driven across some rubble into the necessary area. Whether or not this was possible, it was the view of the workers on the roof that the scissor lift could not traverse that area.

Two roofers who gave evidence described discussions with the sole director of Multi-Run prior to the incident, during which he had said (in effect) that it would be too expensive to install edge protection.

Court result

Multi-Run was charged with a Category 1 'Reckless conduct' offence pursuant to s 31 of the WHS Act, relating to a breach of its duty under s 19(1). It was committed to stand trial and subsequently pleaded not guilty in the Maroochydore District Court. Following a 7-day jury trial, on 7 February 2019, it was found guilty of the offence.

Judge Glen Cash QC fined Multi-Run the sum of $1,000,000, from a maximum penalty of $3 million, and allowed 6 months to pay.

His Honour identified the following as being key considerations which assisted in assessing the culpability of the defendant:

1. How great was the risk created by the defendant's conduct, involving a consideration of matters such as the likelihood of death or serious injury occurring, the consequences if the risk eventuated and what was done by the defendant to address the risk, such as employing apparently experienced and competent workers;
2. How long was the risk tolerated;
3. How easily the risk could have been eliminated or minimised;
4. What motivated the defendant to take the risk.

In deciding penalty, His Honour considered the following matters:

• The risk created by the conduct of Multi-Run was significant.
• While the workers involved were competent roofers and were on a relatively flat roof, those working at the 'live edge' were working with a narrow margin for error, the potential consequences of which were dire. Any fall would inevitably have had tragic consequences.
• The method employed using harnesses and scissor lifts relied on the diligence of the workers on the roof, in circumstances where they were engaged in repetitive work and there was potential for workers to engage “autopilot”.
• The risk had been tolerated for approximately one week, during which time the director of Multi-Run had attended the site frequently and must have known that no rail had been installed, despite having undertaken to do so according to the contract.
• The risk could have been easily addressed. It had been previously agreed that Multi-Run would install edge protection and would be paid for doing so. Some edge protection was installed within two days of the incident, with more being installed by an expert contractor soon thereafter at the relatively modest price of $5,000.
• Evidence regarding discussions between roofers and the sole director of Multi-Run revealed that the decision not to install rail was motivated by a desire to maximise profits. It was a base motivation that must be considered inexcusable in the context of modern work health and safety practices.
• The suggestion that the rail was not installed because of its potential to obstruct access using scissor lifts was rejected.
• The offence committed by Multi-Run was noted to be very serious, with the risk being great and easily avoided.
• Multi-Run had no record of any relevant breaches of work health and safety laws.
• Multi-Run commenced business in 1990 and, since that time, was otherwise a good corporate citizen.
• Multi-Run, while still a registered company, did not have any substantial assets or any real income. Since the global financial crisis in 2008 and these events in 2014, it struggled to find work and employees.
• The building licence of Multi-Run had expired and would not be renewed.
• Reference was made to the decision of Stephen James Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27, which was noted to provide some assistance in respect of the sentence to be imposed upon Multi-Run.
• The need for general deterrence was significant, as was the need to denounce the conduct which involved a flagrant disregard for proper safety methods and was motivated by a desire to improve the company's financial position.

Details