Inspector James v South Coast Excavators Pty Ltd [2011] NSWIRComm 35

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector James v South Coast Excavators Pty Ltd [2011] NSWIRComm 35 Hearing dates: 9 February 2011 Decision date: 31 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC330 of 2010, I find the corporate defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $45,000 with a moiety to WorkCover Authority of New South Wales. 3. In Matter No IRC331 of 2010, I find the corporate defendant guilty of the offence as charged. 4. The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales. 5. There shall be one order as to the costs of the Prosecutor. Each defendant is liable for half 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 - breaches under s 8(1) by corporate defendant and under s 8(1) by virtue of s 26(1) by individual defendant of the Occupational Health and Safety Act 2000 - CORPORATE DEFENDANT - guilty plea - employee a driver on a water cart on roadwork site - employee doing different duties from his task - failure to implement safe system of work on roadworks site - task not properly risk assessed - failure to provide adequate instruction and supervision on site - employee takes instruction from RTA the head contractor on site - employee performing labouring duties not driving duties - basic safety provisions ignored - no spotter on site - no on site communication system between all contractors - general and specific deterrence relevant - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - financial status relied upon in mitigation - financial returns show significant loans to director who is controlling mind of corporation - finding no financial impecuniosity of corporation - fatality - contribution to risk from other parties - penalty - INDIVIDUAL DEFENDANT - director of corporate defendant - guilty plea - fatal injury to employee - failure to properly instruct and supervise employee driver - failure to give full disclosures of personal financial circumstance - failure to identify other income - rejection of claim of financial impecuniosity - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Fines Act 1996 (NSW) s 4, s 6 Occupational Health and Safety Act 2000 (NSW) s 8 (1), s 26 (1) Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Rowe v Eagle Eye Traffic Services Aust Pty Ltd [2010] NSWIRComm 31 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee 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] NSWCCA 131; (2004) 60 NSWLR 168 R v Wilhelm [2010] NSWSC 378 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 Category: Principal judgment Parties: Inspector James (Prosecutor) South Coast Excavators Pty Ltd (First Defendant) Jai Ram Charan (Second Defendant) Representation: R Reitano of Counsel (Prosecutor) A K Singh of Counsel (Defendants) WorkCover Authority of NSW (Prosecutor) Rajesh Chand & Associates (Defendants) File Number(s): IRC330 of 2010 IRC331 of 2010