Inspector Duncan v Bodel's Plumbing Service Pty Ltd [2011] NSWIRComm 30

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Duncan v Bodel's Plumbing Service Pty Ltd [2011] NSWIRComm 30 Hearing dates: 8 February 2011 Decision date: 29 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1.In Matter No IRC500 of 2010, I find the defendant guilty of the offence as charged. 2.The defendant is fined in the sum of $70,000 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 of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - risk identified in the placement of scaffold below roof line - roofer slips from roof down chasm between scaffold and wall of building - fall of over six metres - failure to ensure identification of risk was addressed - failure to provide adequate supervision of task - foreseeability a factor - gravity of the potential risk - general and specific deterrence - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working contribution to risk - parity - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 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 Duncan v Kell and Rigby Act Pty Ltd [2011] NSWIRComm 25 Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee 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 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, (Industrial Relations Commission of NSW in Court Session, Schmidt J, 25 February 1994, unreported) Category: Principal judgment Parties: Inspector Duncan (Prosecutor) Bodel's Plumbing Service Pty Ltd (Defendant) Representation: R Reitano of counsel (Prosecutor) A P Joseph of counsel (Defendant) DLA Phillips Fox, Lawyers (Prosecutor) Walsh & Blair Lawyers (Defendant) File Number(s): IRC 500 of 2010