Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16

Industrial Relations Commission of New South Wales in Court Session

CITATION : Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 PARTIES : Department of Mineral Resources of NSW (Chief Inspector Graham Terrey) A M Hoipo & Sons Pty Ltd FILE NUMBER: IRC6258 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupation Health and Safety - Breach of s15(1) of Occupational Health and Safety Act 1983 - Death of employee when trapped in unguarded conveyor - Plea of guilty - Penalty - Uncertainty surrounding circumstances of employee's death - Resolution of factual issues in sentencing - Standard of proof to be applied - Nature and quality of offence - Objective seriousness of offence involving investigation of whole content of the offence - Risk posed by unguarded conveyor foreseeable notwithstanding uncertainty concerning what employee was doing prior to accident - Offence aggravated by failure of employer to comply with earlier notice to guard machinery - Straightforward remedial steps and foreseeability - Proof of a cause of a particular accident not necessary - Foreseeability of the detriment to safety relevant and not foreseeability of the precise circumstances of an accident - Effect of size of business on penalty - Factors to be taken into account in mitigation. LEGISLATION CITED : Occupational Health and Safety Act 1983 Mines Inspection Act 1901 Department of Mineral Resources of NSW (Chief Inspector Bruce McKensey) v Kembla Coal and Coke Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC142 of 1998, 16 August 1999) Warman International v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of NSW v Waugh (1995) 59 IR 89 R v Olbrich (1999) 166 ALR 330 R v Storey [1998] 1 VR 359 Inspector Gordon v MIJO (NSW) Pty Limited (unreported, Cullen J, CT1002 of 1993, 2 December 1993) WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Co Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC1072 of 1998, 4 February 2000) CASES CITED : Ferguson v Nelmac Pty Limited (unreported, Wright J, President, Matter No. IRC3418-3423 of 1997, 24 May 1999) R v Sgroi (1989) 40 A Crim R 197 WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd and another (unreported, Walton J, Vice-President, Matter No. IRC 1104 of 1998, 4 February 2000) Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 WorkCover Authority of NSW v C I & D Manufacturing Pty Limited (unreported, Fisher CJ, Matter No. CT1192 of 1994, 14 December 1995) Campbell v Neaves (unreported, Hungerford J, Matter No. CT1150 of 1995, 29 March 1996) WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) Neal (1982) 56 ALJR 848 HEARING DATES: 09/09/1999; 09/23/1999; 11/10/1999 DATE OF JUDGMENT: 03/15/2000