Inspector McGrath v McDougall [2012] NSWIRComm 41

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v McDougall [2012] NSWIRComm 41 Hearing dates: 30 April and 4 May 2012 Decision date: 14 May 2012 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: (1) A monetary penalty is imposed on the defendant of $10,000 with a moiety to the prosecutor. (2) The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - defendant deemed guilty of s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) - early guilty plea after amendment of proceedings - appropriate penalty - failure to undertake risk assessment - failure to have in place protocols to prevent someone who is not skilled, trained or qualified in the safe use of forklifts from driving a forklift -objective seriousness - serious offence - strict duty and proactive obligation on employer - mitigating circumstances including actions of other persons - enhanced commitment to occupational health and safety following incident - general and specific deterrence - no prior convictions - contrition and remorse - good character - Victim Impact Statement - application under section 10 of the Crimes (Sentencing Procedure) Act 1999 rejected - penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 - s 10 Occupational Health and Safety Act 2000 - s 8(2), s 26(1) Category: Principal judgment Parties: Inspector Cherie McGrath of WorkCover Authority of New South Wales (Prosecutor) Grahamme Douglas McDougall (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr P Skinner of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) Acclaim Legal (Defendant) File Number(s): IRC 537 of 2009