Inspector Madeline Christensen v Universal Cranes Pty Ltd [2011] NSWIRComm 98

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Madeline Christensen v Universal Cranes Pty Ltd [2011] NSWIRComm 98 Hearing dates: 8 June 2011 Decision date: 10 June 2011 Before: Kavanagh J Decision: 1. In Matter No IRC 1141 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $140,000 with a moiety to WorkCover Authority of New South Wales. 3. There shall be an order as to 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 - guilty plea - task not risk assessed - failure to provide safe work method statement - task involving a movement of a long and heavy girder on a prime mover and jinker - remote control of jinker fails - driver required to attend to problem - no spotter - employer has knowledge of need for spotter - driver's foot caught in wheels causing fatality - serious breach - failure to provide adequate personnel and failure to co-ordinate responsibility between different employers - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - remorse shown and contrition expressed - evidence of ongoing corporate commitment to safe working - evidence of assistance to family of deceased as true expression of remorse and contrition - plea accepted - victims impact statement - 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 Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610. Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Glass v Foamex Polystyrene [2004] NSWIRComm 100 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 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 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Category: Principal judgment Parties: Inspector Madeline Christensen (Prosecutor) Universal Cranes Pty Ltd (Defendant) Representation: R Reitano of Counsel (Prosecutor) R Devlin SC with D Jordan of Counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Clarke Kann Solicitors (Defendant) File Number(s): Matter No IRC 1141 of 2010