WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison (No.2) [2002] NSWIRComm 27

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison (No.2) [2002] NSWIRComm 27 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 - Consideration of application of s10 of Crimes (Sentencing Procedure) Act 1999 - Risk clearly foreseeable - Risk common on building sites where numerous contractors engaged in various capacities - General deterrence - s10 applied only in highly exceptional circumstances - Not appropriate to be applied in present circumstances - Subjective features - Contrition and remorse - Financial means of defendant - Principle of parity considered - Penalty imposed - Costs sought by prosecutor - Costs reserved Crimes (Sentencing Procedures) Act 1999 s10 LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(2) Swimming Pools Act 1992 Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 . 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 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348 Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Griffiths v The Queen (1997) 194 CLR 293 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158 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 Wherritt trading as MJ Wherritt Concrete Pumping Services [2002] NSWIRComm 16 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 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) 106 IR 435 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 Postiglione v The Queen (1997) 189 CLR 295 R v Rushby [1977] 1 NSWLR 594 R v Radich [1954] NZLR 86 Riley v Australian Grader Hire (2000) 103 IR 143 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) NSWIRComm 25 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 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995) Workcover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Ankucic) v. Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 HEARING DATES: 07/09/2001; 07/10/2001; 07/11/2001; 07/12/2001; 02/05/2002 DATE OF JUDGMENT: 03/22/2002