Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79

Industrial Court of New South Wales

CITATION: Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79

PROSECUTOR: Inspector Marie Davidson PARTIES: DEFENDANT: Plasser Australia Pty Ltd

FILE NUMBER(S): IRC 257 of 2008

CORAM: Backman J

CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - s 8(2) - plea of guilty - worker dies after working on split rim and tyre assembly with tyre inflated - serious offence - subjective factors considered - penalty - costs.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 2000

HEARING DATES: 30 October 2008

DATE OF JUDGMENT: 27 May 2009

PROSECUTOR: Mr M Cahill of counsel Solicitors: Criminal Law Practice Legal Group WorkCover Authority LEGAL REPRESENTATIVES: (Ms B Benson)

DEFENDANT: Ms W Thompson of counsel Solicitors: Ai Group Legal Pty Ltd (Ms N Street)

JUDGMENT:

- 3 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Wednesday, 27 May 2009

Matter No IRC 257 of 2008

INSPECTOR MARIE DAVIDSON v PLASSER AUSTRALIA PTY LTD

Prosecution under 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT

[2009] NSWIRComm 79

1 Plasser Australia Pty Ltd (Plasser) has pleaded guilty to an offence under s 8(2) Occupational Health & Safety Act 2000. On 1 March 2006 Kevin Butler, an employee of St Mary's Tyre Service (NSW) Pty Limited, attempted to remove nuts on the rear right-hand rim and tyre assembly of a mobile crane. Shortly after he commenced, John Burdzy, the mobile crane operator and an employee of Plasser, saw the rim on which Mr Butler was working, move slightly. The Agreed Statement of Facts records that Mr Butler stepped back and heard an "explosion". He saw Mr Butler pushed by the force of the air and water escaping from the rim and tyre assembly. Mr Burdzy estimated that Mr Butler was thrown about 6 to 7 metres before slumping onto a 44 gallon drum. 2 Mr Butler was taken by ambulance to hospital where on 5 March 2006 he died of his injuries. 3 The mobile crane was owned and operated by Plasser. At the rear, it was fitted with two split rim and tyre assemblies which were each secured together by 10 threaded studs fitted with nuts. The secured rims were in turn fixed to the rear hubs of the crane by the inner rims containing 8 threaded studs fitted with nuts. The 10 nuts which secured the inner and outer rims, were painted red in order to distinguish them from the 8 nuts securing the inner rims to the hubs. On the day of the accident, only slight traces of red paint remained on some of the 10 nuts securing the rims fitted to the rear right-hand side of the crane. On the rear left-hand side of the mobile crane a plaque was fitted which indicated: "Warning, do not loosen bolts painted red until tyre is fully deflated".