Inspector Duncan v Kell and Rigby (ACT) Pty Ltd [2011] NSWIRComm 25

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Duncan v Kell and Rigby (ACT) Pty Ltd [2011] NSWIRComm 25 Hearing dates: 8 February 2011 Decision date: 24 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC499 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $110,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant is to pay the 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 10(1) of the Occupational Health and Safety Act 2000 by defendant - defendant failed to ensure safe erection of scaffold - defendant failed to ensure safety barriers erected by roofing sub-contractor failure to properly supervise site - injury to employee - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - early guilty plea - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Occupational Health and Safety Act 2000 (NSW) s 10(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 Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 Inspector Page v Rail Infrastructure Corporation [2009] NSWIRComm 9 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 Shankley [2003] NSWCCA 253 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Signanto v The Queen (1998) 194 CLR 656 Veen v The Queen (No.2) (1988) 164 CLR 465 Warman International Limited v WorkCover New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Category: Principal judgment Parties: Inspector Duncan (Prosecutor) Kell and Rigby (ACT) Pty Limited (Defendant) Representation: R Reitano of Counsel (Prosecutor) P E McDonald SC (Defendant) DLA Phillips Fox, Lawyers (Prosecutor) Sparke Helmore, Solicitors (Defendant) File Number(s): IRC499 of 2010