WorkCover Authority of NSW v Karemen Pty Ltd [2016] NSWDC 201

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Karemen Pty Ltd [2016] NSWDC 201 Hearing dates: 29 August 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Criminal Before: KEARNS DCJ Decision: The defendant is convicted. I impose a fine of $75,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor's costs as agreed or assessed. Catchwords: Sentencing; foreseeability; defective vehicle hoist; fatality; mid-range of objective seriousness; Fines Act 1996 Legislation Cited: Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Category: Sentence Parties: WorkCover Authority of New South Wales (prosecutor) Karemen Pty Limited (defendant) Representation: Counsel: Mr P Ginters, instructed by WorkCover NSW, appeared for the prosecutor Ms L-C Hutchinson, instructed by Koffels, appeared for the defendant File Number(s): 2015/243575

Judgment

THE CHARGE AND PLEA 1. Karemen Pty Ltd is charged with an offence under s32 of the Work Health and Safety Act 2011 (the Act) in that on 16 April 2014, it was under a duty under s 19(1) of the Act and it breached that duty. Karemen has pleaded guilty.

THE EVIDENCE 1. The Prosecutor relied on a tender bundle, Exhibit PX 1. The defendant relied on affidavits of Ian Hooper of 23 August 2016, Tony Lombardo of 29 August 2016 and Rosetta Lombardo of 29 August 2016.

THE FACTS 1. Karemen is a family company owned by Anthony (Tony) and Rosetta (Rosa) Lombardo. It is effectively run by Tony Lombardo. For some time before 16 April 2014, its only employees were Tony Lombardo and Carl Sollazzo. Its business was motor vehicle repairs. 2. On 16 April 2014, Mr Rached brought his vehicle in for service. In order to repair the exhaust system, the vehicle was placed on a hoist and raised. The vehicle hoist was a Molnar Two-Post Hoist. What happened is described by Mr Rached as follows: Carl put my car on the hoist and lifted it up. It was about 190cm to 2m off the ground. Carl was working on my car for about 5 minutes, he took two screws out. He went to take the third one off, he was using a very long tool to unscrew the screws. The car started the move slowly back towards the rear passenger wheel side becoming unbalanced on the hoist. Carl used his right hand to grab onto the wheel axel to level the car as Carl pulled it the car came down fast. Carl was still under the car. He was hit by the front driver's side bumper area on the back of his neck. The hit made him fall to his knees bent over. [Agreed Statement of Facts, [14], Exhibit PX 1, tab A.] 1. Mr Sollazzo was fatally injured. 2. Mr Sollazzo was a qualified motor mechanic employed by Karemen for about 12 years. He carried out his duties under the direction of Mr Lombardo. The hoist was used once or twice daily by both Mr Sollazzo and Mr Lombardo. 3. The hoist had four supporting arms that could be moved into position underneath the body of a vehicle to support the vehicle whilst it was off the ground. 4. The arms were each equipped with a safety locking mechanism to prevent movement of the arms when positioned. 5. On 17 April 2014, inspection revealed that all four supporting arms were able to be moved backwards and forwards by hand despite being in the locked position. Australian Standard AS/NZS 1418.9:1996 Cranes (including hoists and winches) – Vehicle hoists stated that supporting arms of hoists shall incorporate locks to prevent movement of the arms once positioned. The hoist's Manual recommended checks be conducted daily on the hoist's safety mechanisms to ensure they were functioning properly. Daily checks of the hoist's safety locking mechanisms would have revealed that they were not operating properly.