Inspector Stothard v Allied Industrial Services Pty Ltd [2011] NSWIRComm 21

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Stothard v Allied Industrial Services Pty Ltd [2011] NSWIRComm 21 Hearing dates: 15 February 2011 Decision date: 22 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC 393 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $130,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - guilty plea - fatal injury to employee - variation made to work method not risk assessed - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general deterrence - company on record not operating - in circumstance no element of specific deterrence - remorse and contrition expressed very effectively with fund established for family - concrete expression of remorse an element in mitigation of penalty - evidence of ongoing corporate commitment to safe working - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A Occupational Health and Safety Act 2000 (NSW) s 8(1) Cases Cited: Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Glass v Foamex Polystrene Pty Ltd [2004] NSWIRComm 100 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Morgenthal v Houghton [2010] NSWIRComm 192 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Category: Principal judgment Parties: Inspector Stothard (Prosecutor) Allied Industrial Services Pty Ltd (Defendant) Representation: P E McDonald SC (Prosecutor) HJ Dixon SC with I Taylor of counsel (Defendant) WorkCover Authority of NSW (Prosecutor) Macpherson & Kelley Lawyers (Defendant) File Number(s): IRC393 of 2010