Simpson Design Associates Pty Ltd v Inspector Ching [2011] NSWIRComm 7

Industrial Relations Commission New South Wales Medium Neutral Citation: Simpson Design Associates Pty Ltd v Inspector Ching [2011] NSWIRComm 7 Hearing dates: 4 - 5 November 2010 Decision date: 25 February 2011 Jurisdiction: Industrial Court of NSW Before: Boland P at 1, Marks J at 127, Kavanagh J at 1 Decision: 1. The appeal is dismissed and the orders made by Haylen J on 9 June 2010 are confirmed. 2. The stay orders made by Boland J, President on 19 July 2010 in Simpson Design Associates Pty Ltd v Inspector Ching [2010] NSWIRComm 98 are dissolved. 3. The appellant shall pay the respondent's costs of the appeal as agreed or assessed. Catchwords: APPEAL - Occupational health and safety prosecution - Prosecution under s 11 of the Occupational Health and Safety At 2000 - Appellant had designed plant relating to a gate installed at a concrete batching plant - Gate fell on person as she was assisting to manually close gate causing her fatal injuries - Plea of not guilty - Appellant found guilty at first instance of breach - Fine imposed - Whether primary judge erred in admitting certain opinion evidence - Whether primary judge erred in placing reliance on regulations - Whether primary judge erred in treating the appellant as though it was a designer of plant when it was asserted it was only a designer of particular components for plant for a particular and limited purpose - Whether the primary judge erred in failing to find the appellant was not culpable due to novus actus interveniens - Whether primary judge erred in relation to the sentence imposed

OCCUPATIONAL HEALTH AND SAFETY - Appeal - Prosecution under s 11 of the Occupational Health and Safety Act - Fatal injuries to a person when a gate fell on her as she was assisting to manually close the gate - Consideration of the duties of a designer under s 11 of the Occupational Health and Safety Act 2000 - Whether primary judge erred in treating the appellant as though it was a designer of plant when it was asserted it was only a designer of particular components for plant for a particular and limited purpose - Whether the primary judge erred in failing to find the appellant was not culpable due to novus actus interveniens - Whether primary judge erred in relation to the sentence imposed