District Court New South Wales Medium Neutral Citation: Workcover Authority of New South Wales v Limerick Billbergia Pty Ltd [2014] NSWDC 195 Hearing dates: 07/07/2014 Decision date: 07 July 2014 Jurisdiction: Criminal Before: Curtis DCJ Decision: The defendant is convicted. The defendant is fined $110,000 with a moiety to be paid to the prosecutor Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Limerick Billbergia Pty Ltd (defendant) Representation: M K Scott (Prosecutor) D B O'Neil (Defendant) WorkCover Legal Services (Prosecutor) HWL Ebsworths Lawyers (Defendant) File Number(s): 2013/11710 1. The defendant, Limerick Billbergia Pty Limited, pleads guilty to the charge that being an employer on 19 January 2011 at Australia Avenue, Sydney Olympic Park, it failed by its acts and omissions to ensure the health, safety and welfare at work of its employee Mr Francis John Doyle contrary to s 8(1) of the Occupational Health and Safety Act. 2. Mr Doyle was injured when a load of safety screens, some 14 metres long and 3 metres wide fell as they were being lifted from a semitrailer. Mr Doyle was crushed between the screens and a fence. He suffered significant injuries including a fracture of his L1 spinal process, a left patella tendon rupture, and a 3-centimetre penetrating wound to his left knee. It was extremely fortunate that Mr Doyle was not killed. 3. The accident occurred because safety screens were lifted by hooks attached to the rods of reinforced steel called Z bars, which held the screens together in a bundle. These rods were not strong enough to bear the load. 4. The dogman, Mr Patrick Noonan, ostensibly employed as an employee of Hypostyle, but effectively an employee of the defendant, initially attempted to lift the bars with slings, however he abandoned that process because the slings were unsuitable. Mr Noonan then, responsibly, discussed the problem with Mr McBrien, the site manager, an engineer employed by the defendant. Mr Seppo another subcontractor on the site was included in those discussions. It was Mr Seppo who advised that the screens be lifted utilising the Zbars. This advice was quite wrong and irresponsible, but Mr McBrien concurred. 5. The specific failures on the part of the defendant were the failure of either Mr Noonan or Mr McBrien to calculate the load, the failure of Mr McBrien and Mr Noonan to advise that the load be sent back to the supplier for repositioning on the semi-trailer with the addition of appropriate supporting apparatus, and the failure to advise and ensure that Mr Doyle was kept clear of the lift. 6. The defendant had in place at the time a safe working method statement in relation to the activity of the dogging which required that the dogman calculate loads to be lifted and the technique to be used before lifting, and also ensure that no person was in a position to be crushed by unpredictable load movement. 7. That safe working statement had been brought to the attention of Mr Noonan and I assume that Mr McBrien was aware of it. Unfortunately it was ignored in the instant case. The further failure of Mr McBrien was a failure to ensure that a specific safe working method was prepared in relation to any lift that was unusual. This particular lift was unusual and that is why Mr Noonan sought advice. The defendant's plea of guilty recognises these faults. 8. Mr O'Neil for the defendant submits that the defendant's culpability is significantly lessened because of the role of the suppliers of the screens, who had inappropriately packed those materials. I do not accept that that circumstance militates other than minimally the culpability of the defendant through its engineer Mr McBrien. 9. The problem was recognised by Mr Noonan and it was a response to that problem that was required by Mr McBrien.The departure from a reasonable standard of care in this particular case I think is significant, and one of the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act is to deter not only this offender but others from committing similar offences, and to denounce the conduct of the offender. Mr Doyle suffered significant injuries and it is appropriate that the failures which led to those injuries be denounced by a substantial penalty. 10. I accept the subjective factors that the defendant was not heedless of safety in a general sense and employed safety officers on its sites. It had commissioned appropriately safe working method statements for all of its activities. I think in one sense this may be seen as a culpable act of negligence by Mr McBrien, who was the personification of the defendant for the purpose of this operation. 11. The maximum penalty is $550,000. I impose a penalty of $150,000, which penalty I discount in the circumstances because of the plea of guilty and the assistance given by the company to WorkCover. The defendant is convicted. The defendant is fined the sum of, in round figures, $110,000. I order that the costs of the prosecution be paid by the defendant as agreed or assessed. I order that a moiety of the fine be paid to WorkCover. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2014