WorkCover Authority of NSW v Charles William Trotter [2014] NSWDC 282

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Charles William Trotter [2014] NSWDC 282 Hearing dates: 4 July 2014 Decision date: 04 July 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The offender is fined $5,775 Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Charles William Trotter (Defendant) Representation: Counsel: A C Casselden appeared for the Prosecutor M J Walsh appeared for the Defendant Solicitors: WorkCover Authority of New South Wales Legal Services (Prosecutor) Meyer Vandenberg Lawyers (Defendant) File Number(s): 2013/179238; 2013/180722 Publication restriction: None

remarks on sentence 1. The defendant, Mr Charles William Trotter is charged that on 16 June 2011 at Taree he failed to exercise due diligence that a corporation controlled by him complied with its obligations under s 10 subs (2) of the Occupational Health and Safety Act 2000. That provision required that the person who had control of the plant or substances at a place of work so far as was reasonably practicable ensured the plant or substance was safe without risks to health. 2. On the day in question a contractor, Mr McQuillan, was engaged by Mr Trotter's company to perform painting in a confined space upon a barge which had been repaired. To do this work he used spray painting equipment and paint supplied by Mr Trotter's company. He also used an incandescent light to illuminate the confined area in which he was working. Unfortunately the light reached a temperature sufficient to ignite the fumes and Mr McQuillan suffered severe burns to his face and body. Had Mr McQuillan used an available fluorescent light it appears the injury would have been obviated. It was the obligation of Mr Trotter to not only provide that light, which he says he did, but to ensure that it was used by Mr McQuillan in the work. Mr Trotter accepts that he is guilty of the offence charged and pleads guilty. 3. Subjective factors in this case operating in mitigation of penalty are that Mr Trotter entered a guilty plea at the earliest available opportunity. The incident was not part of any planned or organised wrong activity. Mr Trotter has no previous convictions and is of good character. He co-operated with WorkCover and assisted it in its enquiries. He took all remedial steps recommended by WorkCover and there is little, if any risk of the company or Mr Trotter re-offending, as the company no longer trades. Mr Trotter suffered quite a severe emotional response to the injury and although his business closed apparently largely because of a closure of a large manufacturer, Goninan, in the area, he also said that he did not want to do that type of work anymore after he saw what happened to Mr McQuillan. 4. The subjective culpability of Mr Trotter is not great, although the warning signs affixed to the paint referred to the danger of ignition and the need to avoid exposure to naked flames. I can understand that neither he nor Mr McQuillan was conscious of the possibility that an incandescent light contained within a bulb would generate sufficient temperature to cause the explosion. Mr Trotter's company and Mr Trotter were, on the evidence before me, quite conscious of safety before this incident. 5. Mr Wells, who did some sub-contracting for Mr Trotter before this incident, says that Mr Trotter gave a safe work method statement to him before he did the work and that Mr Trotter used to have a saying about going home safely after work. In similar terms Mr Jason Wilson who has worked alongside Mr Trotter over a number of jobs over the last nine years spoke of the attention to safety which prevailed in the business of Charley Trotter Welding including occupational health and safety meetings and toolbox talks and risk assessments. 6. I am conscious of the need to prevent breaches of the Act by deterring not only the offender, who I believe has been sufficiently deterred, but by deterring others in the community. It seems to me it is unnecessary in this case to promote the rehabilitation of Mr Trotter. He is subjectively accountable for his actions and he is deeply remorseful. Were it not for the aggravating factor of the extent of the harm to Mr McQuillan it might be appropriate to refrain from imposing a penalty but given the seriousness of that circumstance and the need for denunciation it is appropriate to impose a penalty which I fix at 15% of the maximum, that is 8,250. The offender is entitled to 30% discount upon this sum and he is to be fined $5,775. 7. The prosecution seeks an order that the offender pay the costs of WorkCover and a moiety of the fine. I can see no reason why a moiety of the fine should not be awarded and I so order. I reserve the question of costs pending written submissions from both parties. 8. The prosecution to have submissions on costs within seven days and the defendant seven days thereafter. 9. In recognition of the penalty imposed in matter 180722 I impose no further penalty in relation to the charge of breach of s 10(1) of the Occupational Health and Safety Act averred in matter number 179238. 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: 20 February 2015