Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169

Industrial Court of New South Wales

CITATION: Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169

APPELLANT: Rail Infrastructure Corporation PARTIES: RESPONDENT: Inspector Victor Page

FILE NUMBER(S): IRC 1304 of 2007

CORAM: Boland J President; Walton J Vice-President; Backman J

Statutory interpretation - Occupational Health and Safety - Appeal from finding of guilt by trial judge following a summary defended hearing for a breach of s 8(1) of the Occupational Health and Safety Act 2000 - Preliminary question as to whether the defendant was convicted after finding of guilt but before sentence passed - Meaning of conviction under Criminal Appeal Act 1912 considered - Meaning of conviction at common law considered - Held: finding of guilt following a summary defended hearing but before passing of sentence constituted a conviction under s 5AA of the Criminal Appeal Act 1912.

CATCHWORDS: Appeal - Occupational Health and Safety - Appeal from finding of guilt by trial judge following a summary defended hearing for a breach of s 8(1) of the Occupational Health and Safety Act 2000 - Employee suffered an electric shock and fell some 7.5 metres while climbing a power pole to which was attached a non-isolated, live feeder line - Whether trial judge proceeded on a wrong assumption that relevant risk was that of electrocution - Whether cause of the fall was the employee's failure to secure his arrest harness - Whether there was a failure of supervision by appellant in failing to ensure that the employee properly used the full arrest harness when he climbed the power pole or whether the employee's failure to secure the harness was a casual and isolated act of carelessness over which the appellant had no control - Whether trial judge erred in findings concerning the confusion and lack of understanding on the part of the work team as to the appellant's system of work - Standard of proof and causation considered - Absolute duty to ensure safety considered - Principal cause of risk considered - Whether trial judge erred in concluding that there was a failure in the appellant's system to adequately enforce its instructions - Whether the trial judge erred in findings concerning the defence under s 28 (b) of the Occupational Health and Safety Act 2000 - Appeal in respect of s 8(1) offence dismissed.