WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited [2002] NSWIRComm 58

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited [2002] NSWIRComm 58 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Farrell) PARTIES : DEFENDANT: MIM Transport Pty Limited FILE NUMBER: IRC 4156 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Alleged failure to ensure that persons not in employer's employment not exposed to risks to health and safety - Person killed when he was run over by a forklift - Failure to secure forklift - Failure to remove keys from ignition of forklift when not in use - Defendant's policy and procedures referred to relevant Australian Standard but did not expressly set out terms of Standard - Practice at defendant's site not in accordance with Standard - Failure in form of policy and promulgation of defendant's intention to secure forklifts - Failure to adequately enforce policy and supervise workplace - Special circumstances of the defendant on day of accident - Defendant winding up its operations from the premises on which the accident occurred - Accident occurred on last day of occupation of premises - Trading had ceased from premises prior to date of accident - Defendant contends aberrant nature of operations on day of incident ought result in lower penalty and reduction in the foreseeability of the risk - Unusual nature of operations on day relevant to assessment of objective seriousness of offence - Practice in relation to use of forklift was not however an aberration - Relevant deficits in policies and practices pre-existing winding up operations -Some limited reduction in sentence for unusual circumstances - Simple measures to avoid - Risk reasonably foreseeable - Defendant contends various entities contributed to risk - Contribution of various entities to risk and relevance to determination of appropriate penalty - Offence significant - General and specific deterrence - Subjective features of defendant taken into account in mitigation - Discount for plea of guilty - Relevance of timing of plea to assessment of discount - Plea of guilty entered at first reasonable opportunity - Penalty imposed Crimes (Sentencing Procedure) Act 1999 s22 LEGISLATION CITED : Evidence Act 1995 s191 Occupational Health and Safety Act 1983 s16 Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 Cameron v The Queen [2002] HCA 6 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Harrison's Joinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Richey) (1997) 88 IR 120 Inspector William Hopkins v Michael Wherritt t/as MJ Wherritt Concrete Pumping Service [2002] NSWIRComm 16 James Moore v Vibro-Pile (Aust) Limited [1997] NSWIRComm 69 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Cartwright (1989) 17 NSWLR 243 R v Dodd (1991) 57 A Crim R 349 R v Gallagher (1991) 21 NSWLR 220 CASES CITED : R v Olbrich (1999) 199 CLR 270 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Winchester (1992) A Crim R 345 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 Wong v The Queen, Leung v The Queen (2001) 76 ALJR 79 WorkCover Authority (NSW) (Inspector Lyons) v Warman International Pty Ltd (2000) 105 IR 236 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Ian Tyler) v Sydney Electricity (Industrial Court (NSW), unreported, 23 March 1993, Hill J) WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd (2001) 103 IR 143 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179