Inspector Gregory v Big River Timbers (Veneer) Pty Ltd [2013] NSWIRComm 85

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Gregory v Big River Timbers (Veneer) Pty Ltd [2013] NSWIRComm 85 Hearing dates: 24 September 2013 Decision date: 24 September 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) The defendant, Big River Timbers (Veneer) 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 No IRC 2388 of 2008 to which the defendant entered a plea of guilty; (b) The defendant is fined the sum of $120,000 with half that sum be paid to the prosecutor by way of moiety; (c) The defendant is to pay the costs of the prosecutor in a sum agreed between the parties and in the absence of agreement as assessed pursuant to provisions of the Legal Profession Act 2004. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT - s 8(1) - crush injury received in working at timber and plywood factory - injury results in partial amputation of employee's foot - early pleas of not guilty entered - delays experienced in light of "Kirk" decision in High Court and various challenges in the Court of Appeal - prosecution successful in amending particulars - defendant enters plea of guilty to amended application for order - serious breach established - risk foreseeable and obvious - general and specific deterrence considered - prior offences involve crush type injury - numerous subjective factors considered - long running operation in inherently dangerous industry - overall safety record considered - numerous steps taken to address risk identified - defendant undertakes costly modifications to plant and guarding - new log cutting system introduced at cost of $1.4 M - co-operation with WorkCover investigation - remorse and contrition demonstrated - relatively early plea entered - penalty imposed Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; (2010); 239 CLR 531 Category: Principal judgment Parties: Inspector Marie Gregory (Prosecutor) Big River Timbers (Veneer) Pty Ltd (Defendant) Representation: Mr Reitano of counsel (Prosecutor) Mr McGrath SC (Defendant) WorkCover Authority of NSW (Prosecutor) Herbert Geer Lawyers (Defendant) File Number(s): IRC 2388 of 2008