Industrial Relations Commission of New South Wales in Court Session CITATION : WCA v Inghams Enterprises Pty Limited [2000] NSWIRComm 255 Prosecution: WorkCover Authority of New South Wales PARTIES : Defendant: Inghams Enterprises Pty Ltd FILE NUMBER: IRC6672 of 1999 CORAM: Maidment J Plea of guilty - Failure to ensure health, safety and welfare of employees- Failure to provide safe system of work. CATCHWORDS : Penalty imposed $85 000. LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 12/06/2000 EXTEMPORE JUDGMENT DATE : 12/06/2000 Prosecutor: Ms P McDonald of counsel Solicitor: Mr G Henderson PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: Defendant: Mr J Fernon of counsel Solicitor: Ms W Thompson Freehills JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 6 DECEMBER 2000 Matter No. IRC99/6672 WorkCover Authority of New South Wales (Insp Kalanithy) v Inghams Enterprises Pty Limited Application under s15 (1) of the Occupational Health and Safety Act 1983. EX TEMPORE JUDGMENT 1 HIS HONOUR: In this matter I impose a penalty of $85,000. I note that the maximum is $825,000. I consider the matter to be moderately serious. The reason for that being that wherever there are moving vehicles, there is a danger to those who are on foot. 2 I take into account the evidence of Mr Ruff, the fact that the company is seriously concerned with safety, the number of sites and employees that it has, but it seems to me that from a deterrence point of view the penalty that I have imposed is appropriate, bearing in mind the record of the company, which includes a penalty of $30,000 back in 1994, and the fact that the maximum penalty now is $825,000. 3 I have applied a significant discount on account of the plea of guilty, which was entered early, and I have also taken into account the obvious contrition displayed by the attitude towards the injured employee. I award a moiety and costs to the prosecutor. Statement of facts 1. At all material times the Prosecutor was an Inspector appointed under Division 4 of Part 3 and empowered by Section 48 of the Occupational Health & Safety Act, 1983, to institute proceedings in this matter. 2. At all material times the defendant, INGHAMS ENTERPRISES PTY LIMITED (ACN 008 447 345) was an incorporated company with its registered office located at 4th Floor, 203 Northumberland Street, Liverpool in the State of New South Wales. 3. At all material times the Defendant: i. (a) Was engaged in poultry production and processing at 2-40 Darcey Road, Castle Hill in the State of New South Wales ("the premises"); ii. (b) Employed by Mohammad Hussain Safi, process worker aged 29 at the premises ("Safi"); iii. (c) Operated a fork lift truck at the premises. 4. On 26 March 1998 at approximately 8.50am, Mr Safi was walking towards the wash area at the premises when a fork lift truck in the live bird reception area collided with him. Just prior to the accident another employee, Mr Gary Straub, called a "smoko" break. Mr Safi and Mr Straub, were working in the holding bay at the live bird reception area where live birds were unloaded for processing. Mr Safi had been working on a platform area stacking washed crates onto a pallet. Mr Straub operated a fork lift truck to lift a pallet from its position on a steel frame at the end of the platform Mr Safi jumped down from the platform and began walking towards the wash basins. Mr Straub reversed the fork lift then lowered the tynes of the fork lift and travelled in a forward direction and struck Mr Safi. There were no other persons present in the area at the time of the accident. 5. Mr Safi suffered two broken bones in his right leg and was hospitalised for at least 22 days. 6. On 27 April 1998 the Informant attended the premises and observed as follows: iv. (a) A building with a dimension of 27 metres width and 20 metres length which was known as the live bird reception building. v. (b) Identified the area within the live bird reception building in which the accident occurred ("the live bird reception area") as being 0.3-0.5m from the platform on which Mr Safi was working immediately prior to the accident. vi. (c) A fork lift truck was identified as the vehicle which caused the injuries to Mr Safi and had identification markings as follows: Type M2275, Serial No. 15469, rated capacity 2275 kilograms, loaded centre 600mm, Unladen Weight 2440 kilograms, dated 12/95, Moffett Engineering Company, Clointibret, Mionaghan, Ireland. vii. (d) There were no markings on the floor of the live bird reception area delineating separate paths for the movement of fork lift trucks and pedestrians. It was the usual procedure to access the wash area by walking along the platform on which Mr Safi was working and then to walk down the stairs to the wash basins. 7. The observations and investigations conducted by the Informant found that: viii. (a) Prior to the accident, it was accepted normal practice for employees to use the same path as the fork lift truck. ix. (b) The normal procedure at the premises prior to the accident was for pedestrians going to the rear of the factory to exit via the crate wash end. A fork lift truck when working in the holding bay could exit the holding bay through an opening adjacent to the platform. Pedestrians could also exit the holding bay through this opening. In the holding bay there were no designated areas for either pedestrians or for the movement of fork lift trucks. 8. On 29 April 1998 the Informant issued two improvement notices. Improvement Notice 179328 required the Defendant to "provide markings on the floor designated for pedestrians only or by other proper methods." 9. Subsequent to the accident, the defendant has undertaken the following: x. (a) A walkway has been marked to the edge of the platform to delineate the pedestrian area on the platform and the fork lift area below the platform in the live bird reception area. xi. (b) A barrier has been constructed: a) (i) to prevent fork lift trucks from accessing the floor area near the wash area; and b) (ii) to prevent fork lifts from accessing the floor area near the wash area. xii. (c) Existing barriers were repainted to highlight to employees the areas to be used for access. 10. It is alleged that the defendant, INGHAMS ENTERPRISES PTY LIMITED (ACN 008 447 345), an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 26 March 1998, in that if failed to ensure the health, safety and welfare of its employees, in particular Mohammad Hussain Safi, in that it failed to provide a system of work that was safe and without risks to health for the movement of forklift trucks and pedestrians in the live bird reception area of its premises located at 20-40 Darcey Road, Castle Hill in the State of New South Wales. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.