Inspector Ken Kumar v Keralex Pty Limited (In Administration) [2005] NSWIRComm 199

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Ken Kumar v Keralex Pty Limited (In Administration) [2005] NSWIRComm 199

Prosecutor Inspector Ken Kumar PARTIES: Defendant Keralex Pty Limited (In Administration) (ACN 011 070 170)

FILE NUMBER(S): 5367 and 5368 of 2003

CORAM: Backman J

Ex parte proceedings - Occupational Health and Safety - s8(2) and s10(1) of the Occupational Health and Safety Act 2000 - corporate defendant in administration - insufficient evidence to establish beyond reasonable doubt that defendant an employer - whether defendant had control of premises - whether premises were used by people as a place of work - whether defendant failed to ensure that the premises were safe - consideration of meaning of "unsafe premises" - whether there was a risk to safety - whether there was a failure to undertake a risk assessment - whether there was a failure to provide a safe system of work - whether there was a failure to provide training, supervision and instruction to ensure crates were safely stacked - whether there was a failure to train or instruct employees in the identification of risks associated with the stacking of crates - offence under s8(2) not proven, and charge dismissed - offence under s10(1) proven, defendant found guilty and convicted.

CATCHWORDS: Sentence proceedings - Occupational Health and Safety - s10(1) of the Occupational Health and Safety Act 2000 - employee fatally injured in warehouse when crates stacked "six high" topple over - consequences of the breach - foreseeability and obviousness of the risk to safety - availability of simple remedial steps - deterrence - maximum penalty - respective culpabilities of the defendant and a corporate co-defendant - defendant's financial means - penalty - orders.