Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72

Industrial Relations Commission of New South Wales in Court Session

CITATION : Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72 PROSECUTOR: Workcover Authority of New South Wales (Insp Robert Stobo) PARTIES : DEFENDANT: State Rail Authority of New South Wales. FILE NUMBER: IRC 198 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health & Safety - Alleged failure to properly train worker employed to perform maintenance work on braking mechanism of defendants rail maintenance vehicles - Plea of guilty - Sentence determined by specific reference to offence charged - Braking failure not manifest in accident - Occurence of accident not relevant to seriousness - Risk to safety is potential failure of braking system where inadequately trained employee engaged - Consequences of breach considered - Context of operations - Specific deterrence should usually feature in determination of penalty - Specific deterrence focuses on propensity to reoffend - Strident steps taken to ensure health and safety in workplace - Specific deterrence still relevant as there is still potential for defendant to reoffend, however, lesser feature in sentence due to steps taken - Defendant had a significant number of prior convictions - General Deterrence - Relevance of prior convictions to determination of penalty - Relevance of convictions for other offences which had been entered following offence but prior to determination of culpability - Some tension in the relevant authorities - Conviction after offence to date of hearing may be taken into account but only in tempering leniency, however, unnecessary to determine in this matter as significant criminal record in any event - Special feature of this case was that defendant's workforce had dramatically decreased between offence and hearing of prosecution - Size and extent of defendant's operations taken into account in assessing prior record - Practical reality is the greater the size of the workforce, the greater the potential for what may properly be considered accidents - Significant offence, but not so serious as to warrant a penalty at high end of scale - Changes in the policies and procedures relating to health and safety adopted by the defendant a significant mitigating feature of these proceedings - Subjective features - Plea properly made and conviction entered - Penalty imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Transport Administration (Amendment) Act 2001 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Boney (unreported, NSW Court of Criminal Appeal, Mahoney JA, Grove and Newman JJ, 22 July 1991) R v MacDonnell (unreported, Court of Criminal Appeal, 8 December 1995) R v Thomas, R v Houlton (2000) 49 NSWLR 383 CASES CITED : Reg v Hutchens (1957) 75 WN (NSW) 75 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 The King v Withers (1789) 3 TR 428 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997) WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Matter No's IRC 7032 - 7036 of 1997, Kavanagh J, 13 October 1999) WorkCover Authority of New South Wales (Inspector Richey) v State Rail Authority of New South Wales [2000] NSWIRComm 205 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236 HEARING DATES: 06/01/2001 DATE OF JUDGMENT: 05/07/2002