Inspector Michael Duncan v Brick & Block Company Pty Limited [2011] NSWIRComm 49

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Michael Duncan v Brick & Block Company Pty Limited [2011] NSWIRComm 49 Hearing dates: 7 February 2011 Decision date: 21 April 2011 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: 1. The offence under s 8(1) is proven and the defendant is convicted. 2. The defendant is fined $160,000 with a moiety to the prosecutor. 3. The defendant is to pay the reasonable costs of the prosecutor incurred in relation to both sets of proceedings in a sum as agreed or assessed. Catchwords: Ex parte proceedings - Occupational Health and Safety - s 8(1) of the Occupational Health and Safety Act 2000 - defendant in external administration - whether defendant an employer - whether employees at work - risk to safety particularised as a risk of being struck or crushed by concrete panels each weighing 2 tonnes being transported by a forklift truck - whether failure to provide and maintain a safe system of work - whether forklift was safe when properly used - whether defendant failed to provide adequate information, instruction, training and supervision for removal of the panels - offence proven

Sentence proceedings - Occupational Health and Safety - s 8(1) of the Occupational Health and Safety Act 2000 - employee fatally injured after being struck by a concrete panel weighing 2 tonnes being transported by a forklift truck - forklift defective - forklift travelled over hazardous terrain - forklift driver unilaterally devised procedure for transporting the panels - procedure was patently unsafe - risk obvious and foreseeable - consequences of breach - simple remedial steps available - deterrence - maximum penalty - subjective factors - penalty - orders Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 Category: Principal judgment Parties: Inspector Michael Duncan (Prosecutor) Brick & Block Company Pty Limited (Defendant) Representation: Mr C Magee (Prosecutor) No appearance (Defendant) Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor) No appearance (Defendant) File Number(s): IRC 552 of 2010