Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25

Industrial Relations Commission of New South Wales in Court Session

CITATION : Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 PROSECUTOR: Workcover Authority of New South Wales (Inspector Farrell) PARTIES : DEFENDANT: David Carl Schrader FILE NUMBER: IRC 1659 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 building and construction manager - Pool had been substantially completed and partly filled with water - Pool contractor had installed mesh to cover the pool - Mesh later removed by defendant - Pool contractor visited site and observed that mesh had been removed - No steps taken to replace the mesh or ensure that fencing was installed by either defendant or pool contractor - 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 pool contractor to re-cover the pool - Risk clearly foreseeable - Risk common on building sites where numerous contractors engaged in various capacities - General deterrence - Powerful subjective features - Defendant pleaded guilty - Elements of the offence made out - Plea properly entered - Principles applicable to assessing discount for plea of guilty - Financial means of defendant - Consideration of application of s10 of Crimes (Sentencing Procedure) Act 1999 - s10 applied only in highly exceptional circumstances - Not appropriate to be applied in present circumstances - Penalty imposed - Costs sought by prosecutor - Costs reserved Crimes (Sentencing Procedures) Act 1999 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Swimming Pools Act 1992 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 (Inspector Mayo-Ramsay) (2000) 99 IR 29 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Corinthinian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348 Department of Mineral Resources of NSW v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992) Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 92 IR 84 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 Rushby [1977] 1 NSWLR 594 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 R. v Radich [1954] NZLR 86 Riley v Australian Grader Hire (2000) 103 IR 143 Siganto v The Queen (1998) 194 CLR 656 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 Wong v The Queen, Leung v The Queen (2001) 76 ALJR 79 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Ross Colin Morrison (No.1) [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64