Inspector Estreich v Ceerose Pty Ltd [2011] NSWIRComm 50

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Ceerose Pty Ltd [2011] NSWIRComm 50 Hearing dates: 11 April; 12 April; 14 April 2011 Decision date: 20 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: In relation to Matter No IRC 452 of 2010: (i) the defendant, Ceerose Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 452 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $90,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. In relation to Matter No IRC 453 of 2010: (i) the defendant, Edward Doueihi, is found guilty of a breach of s 8(2) by operations of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 453 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $9,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2) s 26(1) - dogman falls from height on construction site - serious leg injuries - pleas of guilty entered after prosecution case closed and ruling on jurisdictional argument - fall from hoarding while removing formwork - hoarding not a usual place of work - no scaffolding or handrails provided - defendants unaware loads being lifted from hoarding - failure to induct crane crew - failure to ensure use of fall arrest devices or use of perimeter protection including fenced work platform - failure to instruct non-employees in use of such protective measures and failure of supervision - failure to ensure plant/equipment not stored on hoarding - failure to prevent access to hoarding - serious breach - general and specific deterrence - no prior convictions - not early plea but limited utilitarian value warrants modest discount - steps taken to address failures in safety system - penalties imposed Legislation Cited: Occupational Health and Safety Act 2000, s 8(2) s 10(1) s 26 (1) Cases Cited: Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309 Category: Principal judgment Parties: Inspector Phillip Estreich (Prosecutor) Ceerose Pty Ltd (Defendant) Edward Doueihi (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr T Bland of counsel (Defendants) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Johninfo Lawyers (Defendants) File Number(s): IRC 452 of 2010 IRC 453 of 2010