Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Mansell v Robert Josef [2003] NSWIRComm 376 PARTIES : Workcover Authority of NSW (Inspector Mansell) Robert Josef FILE NUMBER: IRC 5486 and IRC 5487 of 1999 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 09/15/2003; 09/16/2003; 09/17/2003; 09/18/2003; 09/19/2003; 10/07/2003; 10/08/2003; 10/09/2003; 10/10/2003; 10/27/2003; 10/28/2003; 10/29/2003; 10/30/2003 EXTEMPORE JUDGMENT DATE : 10/30/2003 Prosecutor: Mr J M Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young of counsel Solicitors: James Legal JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 30 October 2003 Matter No IRC 5486 and 5487of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v ROBERT JOSEF Prosecutions under section 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 376 CHARGE NUMBER 5486 of 1999 1 Robert Josef is charged pursuant to s50(1) of the Occupational Health and Safety Act 1983 in that between 10 November 1995 and 4 December 1995 he was a Director concerned in the management of Josef and Sons Contracting Pty Ltd which company then contravened s15(1) of the Act in that it failed to ensure the health, safety and welfare of certain named employees. 2 I have canvassed the facts in my reasons for judgment in matter number IRC 5488 of 1999, WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2003] NSWIRComm 375 (29 October 2003) and incorporate those findings in these reasons. 3 The offence by the company the subject of the present charge is alleged to be constituted by the company's failure to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line between 21 and 24 November, when Mr Begg, under the direction of Josef & Sons Contracting Pty Ltd, applied a pick and bucket from his excavating machine to demolish the walls and foundations of the fish shop. 4 Evidence from Mr Princi is that the cap of the charged gas supply line was applied approximately 400 to 500mm from the wall of the fish shop. It is true that Mr Princi cannot recall precisely how far, but his estimate is consistent with the photographs which have been shown, in which the cast metal box containing the cut-off valve is seen to be closer to the wall of the shop. It is not necessary that I find, with precision, what the word "close", in the charge, means. I am satisfied that the cap was applied no further than 1 metre from the wall of the fish shop. 5 The danger posed by Mr Begg's work is quite apparent; by inadvertence or clumsiness Mr Begg might easily have brought the pick of his machine in contact with the ground in which the charged gas line lay no more than a foot or so below the surface and ruptured the line. 6 I find that the contravention of s15(1) by the company has been established. 7 Mr Josef arranged for the work to be done and attended upon the site for the purpose of supervision every second day or so. It is certain that he knew of Mr Begg's activities. None of the defences then available under s50(1) (a) (b) or (c) are available to him. 8 I find the offence proved. The defendant is convicted. CHARGE NUMBER 5487 of 1999 9 It follows, from the findings which I have made in Charge number 5486 of 1999 that the company contravened s16(1) of the Occupational Health and Safety Act 1983 in the period 10 November 1995 to 4 December 1995 and Mr Robert Josef is guilty as charged pursuant to s50(1) of the Occupational Health and Safety Act 1983. 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.