Inspector Thomas Yeung v Neatrule Cement Rendering Pty Ltd as Trustee of the Neatrule Trading Trust [2011] NSWIRComm 118

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Thomas Yeung v Neatrule Cement Rendering Pty Ltd as Trustee of the Neatrule Trading Trust [2011] NSWIRComm 118 Hearing dates: 28 July 2011 Decision date: 29 July 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC 1773 of 2009, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $50,000 with a moiety to WorkCover Authority of New South Wales. 3. 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 - defendant corporation employs sub-contractor plasterers - defendant corporation knows of the existence of high voltage power lines but fails to risk assess task of plasterers - fails to warn plasterers of known danger - foreseeable element - general and specific deterrence - remorse and contrition demonstrated - defendant corporation has limited financial turnover - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Factories, Shops and Industries Act 1962 (NSW) Occupational Health and Safety Act 2000 (NSW) Cases Cited: 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 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 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Regina v Dib [2003] NSWCCA 117 Regina v Stambolis [2006] NSWCCA 56 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 Category: Principal judgment Parties: Inspector Thomas Yeung (Prosecutor) Neatrule Cement Rendering Pty Ltd as Trustee of Neatrule Trading Trust (Defendant) Representation: C T Magee of counsel (Prosecutor) WorkCover Authority of NSW (Prosecution) Walkom Lawyers (Defendant) File Number(s): IRC 1773 of 2009