A falling branch, an unguarded drop zone and a $70,000 fine – what this sentencing decision tells arborists, tree surgeons and WHS practitioners about the cost of a missing spotter
SafeWork NSW v General Forest Tree Surgeon WHS case – The Case at a Glance
On a November morning in Elderslie, NSW, a falling branch struck a tree surgeon on the head from ten metres above. The crew had cut the branch deliberately as part of a systematic tree removal job. However, the safeguards that should have kept the worker clear of the landing zone were absent.
The resulting prosecution is a textbook example of a Category 2 failure under the Work Health and Safety Act 2011 (NSW). The offender pleaded guilty. The fine imposed was $70,000. Importantly, this sat against a maximum of approximately $1.86 million.
The Incident – What Happened on 22 November 2022
A crew of four workers assembled under operations manager Mr Shiu Narayan for a pre-dawn toolbox talk.
The job: removal of a Celtis Australis tree. That is a ten-metre specimen recommended for removal in an August 2022 site inspection report prepared by Narayan himself.
A second toolbox talk followed at the site at 8:00am with contracted arborist Mr Joel Rosenberg. SWMS documents were completed. Witches’ hats were placed around the intended drop zone. Work commenced.
Somewhere in the course of that work, Mr Guven Simsek – a member of the crew – entered the drop zone while a cut branch was mid-fall. The branch struck him on the head. He sustained a serious head injury.
The Legal Framework – Category 2 WHS Offences
The Primary Duty of Care – s 19(1)
Section 19(1) of the Work Health and Safety Act 2011 (NSW) imposes on a person conducting a business or undertaking (“PCBU”) a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the business while they are at work.
The duty is not absolute – it is qualified by “so far as is reasonably practicable.” But that qualification cuts both ways. Where simple, known, inexpensive measures would have eliminated or minimised a foreseeable risk, the fact that they were not implemented is difficult to reconcile with the duty.
Section 32 – Category 2 Offence
A person commits a Category 2 offence if, without reasonable excuse, they fail to comply with a WHS duty and that failure exposes an individual to a risk of death or serious injury or illness. The maximum penalty for a corporation at the relevant time was $1,860,843 (17,315 penalty units). Category 2 sits between the most serious Category 1 (reckless conduct) and the less serious Category 3 (failure to comply with a WHS duty). The Regulatory Dimension – cll 54–55 WHS Regulation 2017 Clauses 54 and 55 of the Work Health and Safety Regulation 2017 (NSW) address the management of risks associated with falling objects. They require a person with management or control of a workplace to manage risks of objects falling on persons and, where preventing falling objects is not reasonably practicable, to provide and maintain a system that minimises injury risk.
An exclusion zone – properly established, physically demarcated, and actively monitored – is precisely the kind of system those provisions contemplate.
The SWMS Gap – Documents and Reality
One of the most instructive aspects of the General Forest case is the gap between the paperwork and the practice. The Offender was not without documentation. It had Hazard Books, Onsite Control Checklists, and a Safe Work Method Statement. The team conducted two toolbox talks on the morning of the incident. They reviewed the SWMS with the work crew. Despite this, the system failed at a critical point.
And yet.
What the SWMS Said – Steps 13 & 14
- “13. Establish exclusion zone around work site. Provide training in the correct lowering and dropping procedures.”
- “14. Establish drop zones. Ground workers to keep clear and to warn others during operations and only enter area when safe.”
The SWMS identified the need for an exclusion zone. It told ground workers to keep clear. But it did not require a spotter. It did not require physical demarcation – barrier tape, safety flags, or signage warning workers to look up. It left the safety of the zone dependent on individual compliance rather than systemic enforcement.
The Critical Deficiency
The pre-incident WHS Audit document that Mr Narayan used at the 6:30am toolbox talk did not identify the specific risk of a branch falling from height and striking a ground worker. The foundational hazard – the very hazard that caused the injury – was invisible in the risk assessment document. By pleading guilty, the Offender accepted that the following reasonably practicable steps should have been taken:
- Drop zones demarcated by physical signage (barrier tape or safety flags) warning ground workers to look up and listen for signals before entering
- A designated spotter present to monitor drop zones and prevent unauthorised access during cutting and dropping operations
- Witches’ hats were present – but witches’ hats alone are insufficient where workers are not actively prevented from entering
A witches’ hat marks a zone. A spotter guards it.
The distinction between marking a hazard and managing it was the difference between a near miss and a prosecution.
Sentencing Analysis – The Path to $70,000
Objective Seriousness – Lower to Mid-Range
Taylor J assessed the objective seriousness of the offence as lower to mid-range. This assessment reflects a nuanced analysis that considered both the gravity of the breach and the mitigating operational context.
On the one hand, the risk was well-known and foreseeable – falling objects during tree removal is among the most elementary hazards in arborist work. The fix was simple: physical demarcation and a spotter. The failure to implement these measures was not an error of complexity or resource constraint; it was a gap in the safety management system.
On the other hand, the court recognised that the Offender had taken some steps – toolbox talks, SWMS documentation, Hazard Books, witches’ hats – and that the worker’s own entry into the zone was a contributing factor. These circumstances moderated the objective gravity of the breach, placing it below the mid-range while acknowledging it was not a trivial failure.
Worker Culpability in WHS Sentencing
A recurring issue in this and similar cases is the interaction between worker contributory conduct and the employer’s objective culpability. The principle is settled: a worker’s contribution to the incident may inform the objective seriousness of the employer’s breach, but it does not diminish the employer’s independent duty to maintain safe systems. The employer cannot transfer responsibility for systemic failures to individual workers.
The Penalty and Fine Allocation
The fine of $70,000 represents approximately 3.76 per cent of the maximum available penalty. That positioning reflects the lower-to-mid-range assessment of objective seriousness, tempered by the guilty plea, remorse and capacity to pay, and elevated by the presence of serious injury and the requirements of general and specific deterrence.
Furthermore, the court directed 50 per cent of the fine, being $35,000, to SafeWork NSW under s 122 of the Fines Act.
This provision is a standard feature of WHS penalty orders in NSW. Its purpose is both practical (funding the regulator’s enforcement activities) and symbolic (linking the penalty to the injured party’s institutional representative). The court must set the fine at a level that deters not only this offender but also others in the industry who may cut corners on exclusion zone management.
Implications for Industry and Practitioners
General Forest Tree Surgeon is not a unique incident. Falling objects from trees, scaffolding and rooftops feature consistently in Australian workplace injury statistics as common hazards. The case carries lessons that extend well beyond the arborist industry.
Arborists & Tree Surgeons
Witches’ hats are not enough. You must physically demarcate exclusion zones and actively enforce them. Every tree removal job involving dropping from height requires a designated spotter. The sole role is monitoring the zone – not cutting, not collecting, not driving.
SWMS Drafters
A SWMS that identifies “establish drop zone” without specifying how and by whom it will be maintained creates a false sense of compliance. Generic procedural steps without enforcement mechanisms satisfy neither the regulation nor the court.
WHS Practitioners & Consultants
The failure here was not an absence of documentation – it was an absence of systemic enforcement. Audit programs must test whether teams apply documented controls in the field, not merely whether paperwork is complete. Otherwise, organisations risk mistaking documentation for compliance.
Site Supervisors & Managers
The team conducted two toolbox talks on the morning of the incident. Both missed the critical gap. Pre-work briefings must specifically address drop zone entry protocols – not as a general step but as a named, assigned, enforced responsibility.
Key Takeaways
SafeWork NSW v General Forest Tree Surgeon Pty Ltd [2026] NSWIC 8 is a compact but instructive sentencing judgment. Its facts are not unusual – which is precisely what makes it important. Falling object incidents during tree work are common enough that the industry has no excuse for treating exclusion zone management as an afterthought.
- Documentation alone is insufficient. Systems must operate in the field, not just on paper.
- A spotter is a critical control. Without one, exclusion zones are not effectively managed.
- Witches’ hats mark a zone but do not enforce it. Active monitoring is required.
- Worker conduct may be relevant, but it does not displace the employer’s duty to implement safe systems.
- Category 2 offences carry material financial risk. A $70,000 penalty can arise from basic system failures.
- Early plea and remorse reduce penalty, but do not avoid liability.
The tree did not fall without warning.
It was cut, deliberately, from above.
The only thing that fell without warning
was the system that should have kept the worker clear.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Peter Raykhman, Solicitor
