InterCoast Refrigerated Transport Pty Ltd (in Liquidation) v Inspector Batty (WorkCover Authority of New South Wales) [2013] NSWIRComm 12

Industrial Relations Commission New South Wales Medium Neutral Citation: InterCoast Refrigerated Transport Pty Ltd (in Liquidation) v Inspector Batty (WorkCover Authority of New South Wales) [2013] NSWIRComm 12 Hearing dates: 29 November 2012 Decision date: 21 February 2013 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President; Haylen J; Staff J Decision: The appeal is dismissed and the appellants shall pay the costs of the respondent, as agreed, or, alternatively, as assessed. Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - a first instance finding made of unsafe system of work - repairs being made to prime mover and trailers with assistance of driver - prime mover rolls over inadequate wheel chocks - driver killed in attempting to stop prime mover - failure to direct drivers not to participate in repairs and to stay clear of vehicle - appeal raised matters not raised at first instance and focuses on accident not the particularised risk - directions capable of being understood - driver participating in repair work when performing work normally undertaken by contracted service provider - appeals dismissed Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Coulton v Holcombe (1986) 162 CLR Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) [1999] 90 IR 432 Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 Inspector Batty v InterCoast Refrigerated Transport Pty Ltd (No 2) [2012]NSWIRComm 113 Inspector Batty v InterCoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55 Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672 Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 Category: Principal judgment Parties: Intercoast Refrigerated Transport Pty Ltd (in Liquidation) (First Appellant) Anthony Francis Morfea (Second Appellant) Inspector Ian John Batty (WorkCover Authority of New South Wales) (Respondent) Representation: M J Kimber SC with M K Scott of counsel (Appellants) S Crawshaw SC with A M Mitchelmore of counsel (Respondent) Lander & Rogers Lawyers (Appellants) Criminal Law Practice, Legal Group, WorkCover Authority of New South Wales (Respondent) File Number(s): IRC 821 of 2012 Decision under appeal Citation: Inspector Ian John Batty v Anthony Francis Morfea [2012] NSWIRComm 55 Inspector Ian John Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55 Date of Decision: 2012-06-28 00:00:00 Before: Kavanagh J File Number(s): IRC 1260 of 2010 IRC 1263 of 2010