Inspector James v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 27

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector James v Roads and Traffic Authority of New South Wales [2011] NSWIRComm 27 Hearing dates: 9 February 2011 Decision date: 24 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC332 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $180,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant 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 s 10(1) of the Occupational Health and Safety Act 2000 - guilty plea - labourer not an employee of defendant but working under its direction - moving vehicle hits labourer working near vehicle - failure to implement safe system of work for particular task - generic safety modules not adhered to - no spotter - no internal communication between defendant and multiple sub-contractors - no identification of required safe distance in place between vehicle and labourer - known safety measures not implemented - failure to provide adequate supervision of task - foreseeability a factor - known steps to remedy the defects in the system - contribution to risk from three other defendant sub-contractors on RTA site - general and specific deterrence relevant - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - fatal injury reflection of gravity of risk - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Occupational Health and Safety Act 2000 (NSW) s 10(1) Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Rowe v Eagle Eye Traffic Services Pty Limited and Ors [2010] NSWIRComm 31 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 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 Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 Regina v J.R.B [2006] NSWCCA 371 Tyler v Sydney Electricity (1993) 47 IR 1 Winchester v Regina (1992) 58 ACrimR 345 Veen v The Queen (No. 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Inspector James (Prosecutor) Roads and Traffic Authority of New South Wales (Defendant) Representation: R Reitano of Counsel (Prosecutor) P McDonald (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore (Defendant) File Number(s): IRC332 of 2010