Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Pty Limited and Another [2009] NSWIRComm 206

Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Pty Limited and Another [2009] NSWIRComm 206

Both offences were objectively serious because an unqualified and untrained worker was permitted to perform scaffolding work on incomplete wet scaffolding at height without adequate induction, supervision, monitoring, risk assessment or fall protection, creating an obvious and reasonably foreseeable risk of serious or fatal injury. Mr Lamey's conduct did not mitigate culpability because he should not have been permitted to do the work and the unsafe practice was known or able to be addressed. Mitigating factors, including early guilty pleas, absence of prior convictions, existing safety systems, cooperation, remorse and remedial action, justified discounts, but did not warrant dismissal...

Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Prosecutions Under the Occupational Health and Safety Act 2000 / Sentencing After Pleas of Guilty
Outcome
Both defendants were convicted and fined; Mr Ferguson's s 10 application was refused.
Legal Topics
['falls From Heights' 'scaffolding Work' 'safe Systems of Work' 'site Induction' 'principal Contractor Duties' 'deterrence' 'plea of Guilty' 'section 10 Application' 'capacity to Pay']
['occupational Health and Safety' 'criminal Sentencing'] ['falls From Heights' 'scaffolding Work' 'safe Systems of Work' 'site Induction' 'principal Contractor Duties' 'deterrence' 'plea of Guilty' 'section 10 Application' 'capacity to Pay']

Case Brief

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Procedural Posture

Prosecutions Under the Occupational Health and Safety Act 2000 / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ["Whether the offences were objectively serious having regard to the risk of falling from incomplete wet scaffolding, the worker's lack of qualifications, inadequate supervision, lack of site induction and deficient safe systems of work." 'Whether the risk to health and safety was reasonably foreseeable and whether simple measures were available before the offences to eliminate or reduce the risk.' "Whether Mr Lamey's conduct in climbing on the outside of the scaffolding mitigated the defendants' culpability." 'Whether Mr Ferguson should receive an order dismissing the charge under s 10 of the Crimes (Sentencing Procedure) Act 1999.' "What penalties were appropriate having regard to deterrence, mitigation, pleas of guilty, absence of prior convictions, capacity to pay and the defendants' respective culpability."]

Ratio Decidendi

Both offences were objectively serious because an unqualified and untrained worker was permitted to perform scaffolding work on incomplete wet scaffolding at height without adequate induction, supervision, monitoring, risk assessment or fall protection, creating an obvious and reasonably foreseeable risk of serious or fatal injury. Mr Lamey's conduct did not mitigate culpability because he should not have been permitted to do the work and the unsafe practice was known or able to be addressed. Mitigating factors, including early guilty pleas, absence of prior convictions, existing safety systems, cooperation, remorse and remedial action, justified discounts, but did not warrant dismissal...

Court Disposition

Both defendants were convicted and fined; Mr Ferguson's s 10 application was refused.

Orders

  • ['In Matter No IRC 1415 of 2008, Michael Ferguson is convicted of the offence.' 'In Matter No IRC 1415 of 2008, Michael Ferguson is fined $12,000 with a moiety to the prosecutor.' 'In Matter No IRC 1415 of 2008, Michael Ferguson is to pay the reasonable costs of the prosecutor as agreed or assessed.' 'In Matter No...