Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31 Hearing dates: 9 February 2011 Decision date: 29 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC328 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $120,000 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(2) of the Occupational Health and Safety Act 2000 by defendant - early guilty plea - defendant's truck strikes labourer working beside moving vehicle - known safety features not in place - failure to ensure internal communication between sub-contractors and head contractor - failure to provide spotter for vehicle movement - failure to properly risk assess - contractual obligation on head contractor to provide traffic control but sub contractor defendant fails to ensure safety of persons at the worksite - 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 - assessment of contribution to risk - parity - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Occupational Health and Safety Act 2000 (NSW) s 8(2) Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 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 Postiglione v R (1997) 189 CLR 295 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) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 Category: Principal judgment Parties: Inspector James (Prosecutor) Terra Civil Pty Ltd (Defendant) Representation: R Reitano of Counsel (Prosecutor) B D Hodgkinson SC (Defendant) WorkCover Authority of NSW (Prosecutor) Johnsons Solicitors (Defendant) File Number(s): IRC 328 of 2010