WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277

WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277

Leightons' proven offence was serious because its system of work on 28 November exposed workers on a scaffold to foreseeable and avoidable risk from a bouncing kibble, but the penalty had to reflect that only the system of work aspect of one charge was proved. Lindores' offences were serious because the crane was commissioned with a load gauge unable to give a true indication of weight under relevant thresholds when operating at flatstick in the absence of an operating Markload system, but penalties had to reflect that this defect was not shown to have caused the 28 November incident or the 29 November collapse and arose from one course of conduct. Given substantial prosecutorial failure...

Jurisdiction
Australia
Judgment Date
22 September 2004
Procedural Posture
Prosecutions Under Ss 15(1), 16(1) and 49(4) of the Occupational Health and Safety Act 1983 / Penalty and Costs After Convictions and Acquittals
Outcome
Penalties imposed on both defendants; indemnity costs refused; apportioned costs ordered in favour of the defendants.
Legal Topics
['workplace Safety Prosecutions' 'tower Crane Collapse' 'safe System of Work' 'erection and Commissioning of Plant' 'general and Specific Deterrence' 'indemnity Costs' 'apportionment of Costs']
['occupational Health and Safety' 'criminal Sentencing' 'costs'] ['workplace Safety Prosecutions' 'tower Crane Collapse' 'safe System of Work' 'erection and Commissioning of Plant' 'general and Specific Deterrence' 'indemnity Costs' 'apportionment of Costs']

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Procedural Posture

Prosecutions Under Ss 15(1), 16(1) and 49(4) of the Occupational Health and Safety Act 1983 / Penalty and Costs After Convictions and Acquittals

Legal Issues

  1. 1 ['What penalties should be imposed on Leighton Contractors Pty Limited and Lindores Crane and Rigging (Aust) Pty Limited for the offences found proven under the Occupational Health and Safety Act 1983.' 'Whether general and specific deterrence should affect the penalties imposed.' 'Whether the prosecutor or defendants should receive costs orders after mixed success in the prosecutions.' 'Whether indemnity costs should be ordered in favour of Leighton Contractors Pty Limited.']

Ratio Decidendi

Leightons' proven offence was serious because its system of work on 28 November exposed workers on a scaffold to foreseeable and avoidable risk from a bouncing kibble, but the penalty had to reflect that only the system of work aspect of one charge was proved. Lindores' offences were serious because the crane was commissioned with a load gauge unable to give a true indication of weight under relevant thresholds when operating at flatstick in the absence of an operating Markload system, but penalties had to reflect that this defect was not shown to have caused the 28 November incident or the 29 November collapse and arose from one course of conduct. Given substantial prosecutorial failure...

Court Disposition

Penalties imposed on both defendants; indemnity costs refused; apportioned costs ordered in favour of the defendants.

Orders

  • ['Leighton Contractors Pty Limited is ordered to pay a penalty of $130,000, with a moiety to the prosecutor.' "The prosecutor is ordered to pay 75% of Leighton Contractors Pty Limited's costs, as agreed or assessed in accordance with the Court's Rules." 'Lindores Crane and Rigging (Aust) Pty Limited is ordered to...