Inspector Aldred v Herbert and others [2007] NSWIRComm 170

Industrial Court of New South Wales

CITATION: Inspector Aldred v Herbert and others [2007] NSWIRComm 170

Prosecutor: Inspector Graeme Keith Aldred

PARTIES: Defendants: Christopher Paul Herbert Niall Chang Brian Francis Wadley

FILE NUMBER(S): IRC 7003 of 2004; 1205 of 2005; 1207 of 2005

CORAM: Backman J

CATCHWORDS: Occupational health and safety prosecutions - defended hearings under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 - defendants are alleged to be directors of a hotel/motel - 13 year old boy is electrocuted after standing on an electrified pipe while attempting to retrieve an object which had been thrown from the swimming pool located within the motel complex - elements of s 8(2) by virtue of s 26(1) considered - whether there is a corporation - whether the corporation has contravened s 8(2) of the Act - whether the defendants were directors of the corporation at the time of the contravention - held: elements of offence made out beyond reasonable doubt - defences under s 26(1) considered - whether defendants being directors were not in a position to influence the corporation's contravening conduct under s 26(1)(a) - held: defence under s 26(1)(a) not established by the defendants - whether defendants being in a position to influence the contravening conduct of the corporation used all due diligence under s 26(1)(b) - held: defence under s 26(1)(b) not established by the defendants - all defendants found guilty of offences under s 8(2) by virtue of s 26(1) - orders.

LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000