Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88

Industrial Court of New South Wales

CITATION: Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88

PROSECUTOR: Inspector Colin West PARTIES: DEFENDANT: Abigroup Contractors Pty Ltd

FILE NUMBER(S): IRC 2700 of 2006

CORAM: Haylen J

Occupational Health and Safety Act 2000 - s 8(1) - guilty plea - collapse of work platform - employee working on platform injured - employee wearing harness but harness not secured - works team adopt short cut - safe work method statement deficient - serious breach in lower range - prior convictions - general and specific deterrence considered - defendant large company employing many people in dangerous industry - detailed system of safety otherwise in operation - prompt action to address risk exposed by accident - early plea - subjective factors considered - penalty imposed CATCHWORDS:

HEARING DATES: 11/04/07 EXTEMPORE JUDGMENT DATE: 11 April 2007

PROSECUTOR: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES:

DEFENDANT: Mr M Tooma (Solicitor) SOLICITORS: Deacons

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Haylen J 11 April 2007

Matter No IRC 2700 of 2006 INSPECTOR COLIN WEST v ABIGROUP CONTRACTORS PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

EX TEMPORE JUDGMENT [2007] NSWIRComm 88

1 Inspector West, an inspector appointed under the provisions of the Occupational Health and Safety Act 2000, commenced proceedings alleging a breach of s 8(1) of the Act by Abigroup Contractors Pty Ltd. The work in relation to which the charge was brought concerned the construction of a bridge at a location some 15 kilometres north of Taree. In the course of dismantling a work platform or traveller, the platform collapsed and an employee, Matthew Smith, was injured when he fell to the ground from the platform. 2 On the filing of an Amended Application for Order, the defendant entered a plea of guilty. This judgment deals with the evidence and submissions on penalty. 3 The particulars of the Amended Order to which the defendant entered its plea of guilty were as follows: The defendant failed to ensure that the system of work and the working environment of its employees was safe and without risk to health in that (a) the work of dismantling the platform while the injured worker was standing on it when it was only supported by the chain slings attached to the crane was contrary to the requirements of Clause 142 of the Occupational Health and Safety Regulation 2001 and, (b) the work of dismantling the platform was conducted when the injured worker was standing on the platform when his safety harness was not properly secured to an appropriate fixing point. A description was given in the particulars of the way in which the employee fell when the work platform suddenly collapsed. It was noted that as a consequence the worker received injuries including fractured ribs and bruising to the right side of his body and leg. 4 The evidence suggests that he was not able to return to normal duties for approximately one month. The evidence for the prosecutor was constituted by: an Agreed Statement of Facts (which will be an annexure to this judgment); a factual report prepared by the inspector; some photographs and a sketch in relation to the incident; a collection of improvement notices; and, copies of the safe working method statement for this work at the time of the accident and a new safe working method statement drawn after the accident. The Court was also provided with a record of prior convictions and copies of the judgments in which those previous convictions were dealt with. That record showed 10 offences against provisions of the Occupational Health and Safety Act 1983 although, the most recently recorded convictions, dating back to 1995 and numbering five breaches, constitute a significant part of that record and relate to the defendant's participation in what might be described in a shorthand way as the Kogarah gas explosion. The evidence for the defendant was constituted by an affidavit sworn by Ronald James Yates, the Group Manager, Contract and Management Services of the defendant and that affidavit was supported by a number of exhibits contained within three folders.