NSW Caselaw
Industrial Court of New South Wales
CITATION: Inspector Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213
PARTIES: Inspector Barnabas Ching (Prosecutor) Simpson Design Associates Pty Ltd (Defendant)
FILE NUMBER(S): IRC 404 of 2008
CORAM: Haylen J
Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 Inspector Carmody v Tsougranis (No 2) (2003) 123 IR 419 CATCHWORDS: Inspector Ching v Bros Bins System Pty Ltd (2003) IR 62 at [40] Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994 - Peterson J) National Hire Pty Ltd v Howard (2003) 126 IR 240 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81
Evidence Act 1995, s 79 Occupational Health and Safety Act 1983, s 81(2) LEGISLATION CITED: Occupational Health and Safety Act 2000, s 11(1) Occupational Health and Safety and Welfare Act 1986 (SA), 24(1) and (2)(a) Occupational Health and Safety Regulation 2001, Pt 5.2
CASES CITED: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 11(1) - structural engineer engaged to design bi-sliding metal gates for concrete batching plant - design drawings deal with core structural elements of metal gate - running gear to be supplied and installed by others - when gates installed manual operation becomes necessary because of failure of gate motor - non-employee assists in manual closure of heavy gates - gate leaf passes end of supporting portal and becomes unsupported - gate falls on non-employee inflicting fatal injuries - after accident defendant designs stops to prevent gate leaves travelling beyond supporting portal when manually operated - stops not included in original design - defendant relies on limited professional role of structural engineer - operation and use of gate said not to be part of role of structural engineer - expert evidence as to duty of professional engineers in design and risk assessment - duty required consideration of manual operation by designing engineer - obligation of person who designs plant for use by people at work - Occupational Health and Safety Regulation 2001 - Pt 5.2 - obligation on designer to identify hazards in use of plant and to assess risks arising from use of plant - duty to eliminate or control risks in operation of plant - defendant found guilty of breach - s 28 defences not established
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