Independent Transport Safety Regulator v Rail Corporation New South Wales [2013] NSWIRComm 27

Industrial Relations Commission New South Wales Medium Neutral Citation: Independent Transport Safety Regulator v Rail Corporation New South Wales [2013] NSWIRComm 27 Hearing dates: 4 April 2013 Decision date: 15 April 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (i) the defendant, Rail Corporation New South Wales, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter IRC 482 of 2012 to which the defendant entered a plea of guilty; (ii) the defendant is fined the sum of $150,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as assessed. Catchwords: RAIL SAFETY ACT 2008 - s 8(1) - failure to provide supervision and monitoring of work to ensure safety - guilty plea entered - five person work team required to work in rail corridor - obvious danger of being struck by trains using rail corridor - failure to block line where work being performed - train unexpectedly arrives at site where work team engaged - entire team put at risk - one member of the team fatally injured when struck by train - gaps demonstrated in safety system - lack of appropriate supervision and monitoring of safety communications - serious breach established - general and specific deterrence considered - numerous subjective factors mitigate penalty - early plea - contrition - first offender - significant steps taken after accident to address risks to safety - Victims' Impact Statements received - penalty imposed - costs. Legislation Cited: Occupational Health and Safety Act 2000 Rail Safety (Adoption of National Law) 2012 Rail Safety Act 2008 Cases Cited: Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155 Category: Principal judgment Parties: Independent Transport Safety Regulator (Prosecutor) Rail Corporation New South Wales (Defendant) Representation: Mrs Thompson of counsel (Prosecutor) Mr Hodgkinson SC (Defendant Crown Solicitor's Office (Prosecutor) Ashurst Australia (Defendant) File Number(s): IRC 482 of 2012