Inspector Hall v Everwilling Cranes Pty Ltd [2011] NSWIRComm 52

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hall v Everwilling Cranes Pty Ltd [2011] NSWIRComm 52 Hearing dates: 18 April 2011 Decision date: 29 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: A. In relation to Everwilling Cranes Pty Ltd (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 344 of 2010 to which it has entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. B. (i) the defendant, Everwilling Cranes Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 345 of 2010, to which it entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. C. (i) the defendant, A W Edwards Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 346 of 2010 to which it entered a plea of guilty; (ii) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 8(2) - pleas of guilty entered by two corporations - principal contractor engages specialist crane company - building constructed by lifting pre-cast concrete panels into place - during lifting of heavy panel crane fails - boom hits associated work platform and falls on nearby bus - employees and non-employees injured - failure by crane company to properly position crane and failure of supervision - failure to ensure pre-operational checks carried out and weight of panel checked - principal contractor fails to ensure crane company carried out checks of crane before work commenced - failure to ensure crane company followed its SWMS - serious breaches - general and specific deterrence - significant subjective factors for each defendant - both enter early pleas - both defendants without prior convictions and long history of safe working systems - responsibility taken for accident - prompt steps taken to address risks - good industrial citizenship and contrition demonstrated - fines imposed - both defendants having different responsibilities regarding lifting work yet approximately same level of culpability found - crane company found guilty of two charges arising from same incident - many common elements - principle of totality applied - fines adjusted Legislation Cited: Occupational Health and Safety Act 2000. s 8(1) s 8(2) Cases Cited: Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) Inspector McMartin (2006) 159 IR at [584] Pearce v The Queen (1998) 194 CLR 610 Category: Principal judgment Parties: Inspector Craig Hall (Prosecutor) Everwilling Cranes Pty Ltd (Defendants in 10/344; 10/345) A W Edwards Pty Ltd (Defendant in 10/346) Representation: Mr R Reitano of counsel (Prosecutor) Mr D Jordan of counsel (Defendants in 10/344; 10/345) Mr B Hodgkinson SC (Defendant in 10/346) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Sparke Helmore (Defendants in 10/344; 10/345) Henry Davis York (Defendant in 10/346) File Number(s): IRC 344 of 2010 IRC 345 of 2010 IRC 346 of 2010