Inspector Ching v Hy-Tec Industries Pty Ltd and Ors [2010] NSWIRComm 73

Industrial Court of New South Wales

CITATION: Inspector Ching v Hy-Tec Industries Pty Ltd and Ors [2010] NSWIRComm 73

Inspector Barnabas Ching (Prosecutor) PARTIES: Hy-Tec Industries Pty Ltd (Defendants in 08/399 and 08/400) Lejah Pty Ltd (Defendants in 08/402 and 08/403) Simpson Design Associates Pty Ltd (No 2) (Defendant in 08/404)

FILE NUMBER(S): IRC 399, 400, 402, 403 and 404 of 2008

CORAM: Haylen J

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2), s 11(1)(a), s11(1)(b) - sentencing - three defendants charged arising out of same workplace fatality - two defendants enter plea of guilty - one defendant found guilty in contested proceedings - offences arise at varying times - different roles played by each defendant - motorised gates installed at factory at end of construction phase - manual operation necessary from time-to-time due to failure of gate motor - non-employee assists in manual closure of gates - gate leaf passes end of supporting portal and becomes unsupported - gate falls on non-employee inflicting fatal injuries - failure to provide stops for manual operation of gate - steps not specified or required by structural steel designer or fabricator or operator of gates - discussions of need for all relevant facts to be established in sentencing multiple defendants arising from same incident - serious offence established - general and specific deterrence - totality - parity and consistency in sentencing - subjective factors - consideration of Victim Impact Statements - fines imposed

LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001