Inspector Simpson v Hyrock Pty Ltd [2008] NSWIRComm 41

Industrial Court of New South Wales

CITATION: Inspector Simpson v Hyrock Pty Ltd [2008] NSWIRComm 41

PROSECUTOR Inspector Karen Simpson PARTIES: DEFENDANT Hyrock Pty Ltd

FILE NUMBER(S): 1141 of 2007

CORAM: Marks J

CATCHWORDS: Occupational Health and Safety prosecution - guilty plea - penalty - mitigating factors - defendant committed to occupational health and safety matters - defendant cooperated with prosecutor re investigation - contrition and remorse - no prior conviction under Act - offence regarded as serious - obligations directed to risk of injury - deterrent effect of penalty - value of early guilty plea - penalty imposed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s26 Occupational Health and Safety Act 2000 s8(1)

HEARING DATES: 22 February 2008

DATE OF JUDGMENT: 7 March 2008

PROSECUTOR Mr R Reitano of counsel Solicitor: Legal Group WorkCover Authority of NSW LEGAL REPRESENTATIVES: Mr W Steenson

DEFENDANT Ms W Thompson of counsel Solicitor: Freehills Mr M Bastick

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Marks J

Friday 7 March 2008

Matter No IRC 1141 of 2007

Inspection Karen Simpson v Hyrock Pty Ltd

Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2008] NSWIRComm 41

1 In these proceedings the prosecutor, Inspector Karen Simpson of the WorkCover Authority of New South Wales, has charged the defendant, Hyrock Pty Ltd, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The charge is constituted by an amended application for order which asserts that the defendant, being an employer, on 21 July 2005 at a plant in Charbon in the state of New South Wales failed to comply with s 8(1) of the Act in the manner set out in the particulars. The particulars are as follows: "a) The defendant was, at all material times, an employer; b) The defendant at all material times conducted a lime works at Charbon Road, Charbon; c) The defendant at all material time required its employees at the lime works (in particular Mr Keith) to undertake work that involved the collection and removal of waste from the core chute ("core (waste) removal"); d) The defendant failed to ensure that plant, being a Toyota forklift was properly maintained so as to prevent risks arising from any failure of the forklift's braking system whilst undertaking core (waste) removal from the hydration plant; e) The defendant failed to ensure that an adequate risk assessment was undertake in relation to work performed by employees using forklifts and other equipment in undertaking work associated with core (waste) removal from the hydration plant; f) The defendant failed to ensure that there was a safe system of work for employees (in particular Mr Keith) undertaking work associated with core (waste) removal from the hydration plant; g) The defendant failed to ensure that employees (in particular Mr Keith) working at the plant who were undertaking work associated with core (waste) removal at the said plant were properly trained, instructed and supervised in the work associated with core (waste) removal and the use of forklifts; h) On 21 July 2005, the defendant failed to ensure that employees (in particular Mr Keith) working alone at the plant had an adequate system by which they could communicate with others in the event of an emergency; i) As a result of the defendant's failures, Arron James Keith, was placed at risk and was fatally injured."