WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 PROSECUTOR: WorkCover Authority of NSW (Inspector Farrell) PARTIES : DEFENDANT: Ross Colin Morrison FILE NUMBER: IRC 1666 of 2000 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged failure to ensure the persons not in the defendant's employment not exposed to risks to health and safety - Child drowned in partially constructed swimming pool at domestic construction site - Defendant self-employed pool builder - Pool had been substantially completed and partly filled with water - Defendant had installed mesh to cover the pool - Mesh later removed by builders working on the house - Defendant visited site and observed that mesh had been removed - No steps taken to replace the mesh or ensure that fencing was installed - Obvious risk to safety as a result of pool not being covered - Risk arose from the defendant's undertaking - Defendant not entitled to rely on builders to cover the pool - Elements of the offence made out - Whether defence established under s53 of the Act - Risk foreseen by defendant - Whether reasonably practicable for defendant to ensure pool was covered - Reasonable steps available to address risk - No steps taken by defendant - Defence not established - Offence proven. LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(2) s53(a) and (b) Swimming Pools Act 1992 s10 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58 Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Fisher,P, No's 1212 & 1213 of 1990, 30 June 1992) Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 CASES CITED : Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 HEARING DATES: 07/09/2001; 07/10/2001; 07/11/2001; 07/12/2001 DATE OF JUDGMENT: 12/19/2001