Inspector Halcroft v Hardy Bros Mining and Constructions Pty Ltd [2012] NSWIRComm 140

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Halcroft v Hardy Bros Mining and Constructions Pty Ltd [2012] NSWIRComm 140 Hearing dates: 12 & 13 June, 2012 (Mr Robert Hardy); 14 September 2012 (WesTrac); 19 November 2012 (all defendants) Decision date: 04 December 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) the defendant, WesTrac Pty Ltd, 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 IRC 803 of 2011 to which it entered a plea of guilty; (b) the defendant is fined the sum of $150,000 with half that sum to be paid to the prosecutor by way of moiety; (c) 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. (a) the defendant, Hardy Bros Mining and Constructions 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 IRC 802 of 2011 to which it entered a plea of guilty; (b) the defendant is fined the sum of $105,000 with half that sum to be paid to the prosecutor by way of moiety; (c) 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. (a) the defendant, Robert Leslie Hardy, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26 as particularised in the further Amended Application for Order in Matter IRC 804 of 2011 to which he entered a plea of guilty; (b) the defendant is fined the sum of $11,250 with half that sum to be paid to the prosecutor by way of moiety; (c) 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) s 26(1) - construction of dam on mine site - sub-contractor using leased dozer - need to repair ripper tine - repairs the responsibility of company leasing dozer to sub-contractor - lack of appropriate lifting gear at site - repairs attempted in field - heavy tine falls during lift - leasing company employee suffers loss of leg in accident - serious risk foreseeable - leasing company bears most responsibility for accident - defects in systems used by all defendants - general and specific deterrence - subjective factors considered - contrition and remorse demonstrated - application under s 10 (Crimes) Sentencing Procedure) Act - application refused - penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Inspector McGrath v Edmen Recruitment Pty Ltd [2012] NSWIRComm 108 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 Category: Principal judgment Parties: Inspector Bronwen Halcroft (Prosecutor) Hardy Bros Mining & Construction (Defendant in 11/802) WesTrac Pty Ltd (Defendant in 11/803) Robert Leslie Hardy (Defendant in 11/804) Representation: M Moir of counsel (Prosecutor) Mrs W Thompson of counsel (Defendants in 11/802 and 11/804) B Hodgkinson SC (Defendant in 11/803) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Carrol & O'Dea Lawyers (Defendants in IRC 11/802 & IRC 11/804) Middletons (Defendant in 11/803) File Number(s): IRC 802 of 2011 IRC 803 of 2011 IRC 804 of 2011