WorkCover Authority of New South Wales (Inspector Mulder) v Roads and Traffic Authority of New South Wales [2001] NSWIRComm 23

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Mulder) v Roads and Traffic Authority of New South Wales [2001] NSWIRComm 23 PROSECUTOR WorkCover Authority of New South Wales (Inspector Mulder) PARTIES : DEFENDANT Roads and Traffic Authority of New South Wales FILE NUMBER: IRC 1632 of 1998 CORAM: Marks J CATCHWORDS : Plea of guilty - Assessment of penalty - Comparative sentences where another party already sentenced. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 17(1)(a) CASES CITED : Ferguson v Nelmac Pty Ltd (1999) 92 IR HEARING DATES: 03/30/2000; 02/08/2001 DATE OF JUDGMENT: 02/23/2001

PROSECUTOR Ms P E McDonald of counsel SOLICITORS WorkCover Authority of NSW

LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson of counsel SOLICITORS Roads and Traffic Authority of NSW

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: MARKS J

Friday 23 February 2001

Matter No IRC 1632 of 1998

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MULDER) v ROADS AND TRAFFIC AUTHORITY OF NSW Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983

JUDGMENT

INTRODUCTION

1 On 4 April 1996 Nelmac Pty Ltd was engaged in the construction of a bridge under contract from the defendant in these proceedings the Roads and Traffic Authority of NSW. Mark Poi was a carpenter employed by Nelmac Pty Ltd. He was walking across the bridge which had been built over a gully. Timber bearers had been placed between pre-cast girders and plywood had been placed on the bearers to cover the openings. Concrete was to be poured over the total area to form the deck of the bridge. When Mr Poi was walking along the bridge in its then state of construction on 4 April 1996 not all of the plywood had been nailed down. He stepped on one piece of plywood which was not nailed to the bearers and fell through the hole in the bridge a distance of some 18 metres and was killed. Nelmac Pty Ltd was prosecuted by the Secretary of the Construction Forestry Mining & Energy Union (NSW Branch) and in proceedings which are reported as Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Justice Wright, the President of this Court convicted Nelmac Pty Ltd of three offences under s 15 of the Occupational Health and Safety Act 1983 ("the Act"), the defendant having pleaded guilty. The defendant was fined a total of $100,000. 2 In these proceedings the prosecutor Inspector John Mulder of the WorkCover Authority of New South Wales has charged the defendant Roads and Traffic Authority of NSW with a breach of s 17 (1)(a) of the Act. The defendant has pleaded guilty and this judgment is concerned only with the assessment of penalty. 3 Section 17(1)(a) of the Act is in the following terms: Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, 4 The charge brought against the defendant is in the following terms: