Inspector Paul Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Paul Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Paul Mansell) PARTIES : DEFENDANT: Orica Australia Pty Limited FILE NUMBER: IRC 3911 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged breach of s16 of the Occupational Health and Safety Act 1983 - Contractor suffered crush injuries when controls to a powered winch from which he was suspended in a confined working environment malfunctioned - Alleged failure to provide a safe system of work - Alleged failure to provide plant and equipment that was safe and without risk to health - Alleged failure to provide a safe means of egress from a 'confined space' working environment - Plea of guilty - Objective seriousness of offence primarily determinative of penalty - Contribution to risk by other parties - Assessment of culpability of defendant where third party involvement in creation of risk - Sentence determined by specific reference to offence charged - General and specific deterrence - Specific deterrence should usually feature in determination of penalty even when defendant is aware of obligations under the Act and has expended considerable efforts and resources on providing a safe workplace - Subjective features - Laudable efforts of defendant to provide safe workplace prior to and following accident and defendants approach to matters of health and safety result in significant reduction in sentence - Discount for plea of guilty, contrition and co-operation - Parity - Plea of guilty properly made and conviction entered - Penalty imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 s 16 Occupational Health and Safety Act 2000 ss 139 141 and Schedule 3 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Fletcher Constructions Australian Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Griffiths v The Queen (1997) 194 CLR 293 Inspector Paul Mansell v Anytime Industrial Services Pty Limited (2001) 110 IR 34 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED : R v Sharma [2002] NSWCCA 142 R v Thomson, R v Houlton (1999) 49 NSWLR 383 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 State Rail Authority v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72 HEARING DATES: 06/26/2001; 11/30/2001 DATE OF JUDGMENT: 07/12/2002