Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61

Industrial Relations Commission of New South Wales

CITATION: Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61

Prosecutor: Inspector Marilyn Lewis PARTIES: Defendant: Northern Sydney and Central Coast Area Health Service (ABN 48 344 669 728)

FILE NUMBER(S): 4347 of 2003

CORAM: Backman J

CATCHWORDS: Occupational health and safety - plea of guilty to one offence under s 15(1) of the Occupational Health and Safety Act 1983 - factual particulars disputed by the defendant - defendant's employees become ill after exposure to chemical fumes from a product supplied for the operation of its x-ray processing machine - whether the product was a hazardous substance under the Occupational Health & Safety (Hazardous Substances) Regulation 1996 - whether the product was used without adequate material safety data sheets; appropriate templates or appropriate advice regarding its chemical constitution - whether defendant failed to conduct an adequate assessment of the risks to health and safety posed by the product - whether failure to provide adequate ventilation - whether failure to provide adequate information; instructions; training and supervision - maximum penalty where subsequent offence but prior conviction under occupational health and safety legislation - consideration of s 51A of the 1983 Act - whether risk to safety was reasonably foreseeable - deterrence - remedial steps - consequence of the breach - prior safety system - personal factors - application s 10 Crimes (Sentencing Procedure) Act 1999 considered and refused - penalty - orders - costs.

Anderson v The Queen (1993) 177 CLR 520 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Dean Craig McInerny (1986) 28 A Crim R 318 Hutchins (1957) 75 WN (NSW) 75 Inspector Mark Wright v Northern Sydney and Central Coast Area Health Service [2005] NSWIRComm 463 LEGISLATION CITED: Maddaford v CSR Limited & Mulgoa Quarries [2004] NSWIRComm 337 Morrison v Powercoal Pty Ltd & Anor (No. 3) [2005] NSWIRComm 61 Reg v O'Neill (1979) 2 NSWLR 582 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 The Queen v Olbrich (1999) 199 CLR 270 Winchester (1992) 50 A Crim R 345 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449