Inspector Hall v Denham Constructions Pty Limited [2011] NSWIRComm 168

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hall v Denham Constructions Pty Limited [2011] NSWIRComm 168 Hearing dates: 22 September 2011 Decision date: 16 December 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: The Court makes the following orders: 1. In Matter No IRC1062 of 2010, the offence under s 8(1) of the Act, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $180,000. with a moiety to WorkCover Authority of New South Wales. 3. In Matter No IRC1063 of 2010, the offence under s 8(2) of the Act, I find the defendant guilty of the offence as charged. 4. The defendant is fined in the sum of $180,000 with a moiety to WorkCover Authority of New South Wales. 5. In the application of the principle of totality, the defendant is fined in the sum of $200,000. 6. Therefore, in Matter No IRC1062 of 2010, the defendant is fined in the sum of $100,000 with a moiety to WorkCover Authority of New South Wales. 7. Therefore, in Matter No IRC1063 of 2010, the defendant is fined in the sum of $100,000 with a moiety to WorkCover Authority of New South Wales. 8. The defendant is to pay 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(1) and s 8(2) of the Occupational Health and Safety Act 2000 by defendant - defendant (principal contractor) failed to ensure the health, safety and welfare at work of all its employees - defendant failed to ensure that people (other than employees of the defendant) and members of the public, were not exposed to risks to their health or safety - critical nature of risk defendant - nature of injury - proper propping system in place but failure to communicate with contractors - failure to check placement of crane - failure to ensure safety checks after changing SWMS - the offences most serious - gravity of the potential risk - risk of serious injury and/or a fatality - foreseeability a factor - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - lateguilty plea - remorse shown and contrition expressed - no prior convictions - mitigating factors - contribution to risk - evidence of ongoing corporate commitment to safe working - penalty Legislation Cited: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee 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 Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 R v Tiddy (1969) SASR 575 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 Craig Hall (Prosecutor) Denham Constructions Pty Limited (Defendant) Representation: M P Cahill of counsel (Prosecutor) F P Hicks of counsel (Defendant) DLA Phillips Fox, Lawyers (Prosecutor) Crisp Legal (Defendant) File Number(s): IRC1062 of 2010 IRC1063 of 2010