WorkCover Authority of New South Wales (Inspector Childs) v Stimson (No 2) [2005] NSWIRComm 201

WorkCover Authority of New South Wales (Inspector Childs) v Stimson (No 2) [2005] NSWIRComm 201

Defendant failed to show, on the evidence, that the offence was due to causes over which he had no control or that it was impracticable to make further safety provision as required by s 28(b). Reasonably practicable measures, such as fencing or ceasing work, could have prevented the risk. The duty owed under the Act requires proactive steps to prevent foreseeable risks to all, including those who ignore safety instructions. Therefore, the s 28 defence was not established and the initial finding of guilt stands.

Jurisdiction
Australia
Judgment Date
10 June 2005
Procedural Posture
Prosecution Under Occupational Health & Safety Act 2000 S 9 / Post Verdict, Hearing on Section 28 Defence and Penalty Submissions
Outcome
Defendant's section 28 defence rejected; finding of guilt confirmed; matter listed for penalty hearing.
Legal Topics
['prosecution Under S 9 and S 28 Defences' 'employer/contractor Duties' 'causation' 'onus of Proof' 'foreseeability of Risk' 'workplace Safety Requirements']
['occupational Health and Safety' 'industrial Law'] ['prosecution Under S 9 and S 28 Defences' 'employer/contractor Duties' 'causation' 'onus of Proof' 'foreseeability of Risk' 'workplace Safety Requirements']

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Procedural Posture

Prosecution Under Occupational Health & Safety Act 2000 S 9 / Post Verdict, Hearing on Section 28 Defence and Penalty Submissions

Legal Issues

  1. 1 ['Whether the defendant made out a defence under s 28 of the Occupational Health & Safety Act 2000' 'Whether the court must consider s 28 defences not raised by counsel' "Causation—whether Mr Clissold's actions broke the chain of causation" 'Reasonable practicability and control in workplace safety duties']

Ratio Decidendi

Defendant failed to show, on the evidence, that the offence was due to causes over which he had no control or that it was impracticable to make further safety provision as required by s 28(b). Reasonably practicable measures, such as fencing or ceasing work, could have prevented the risk. The duty owed under the Act requires proactive steps to prevent foreseeable risks to all, including those who ignore safety instructions. Therefore, the s 28 defence was not established and the initial finding of guilt stands.

Court Disposition

Defendant's section 28 defence rejected; finding of guilt confirmed; matter listed for penalty hearing.

Orders

  • ['Matter listed for hearing at 10:00 am on 25 August 2005 to hear submissions on penalty.']