Inspector Howard v Connell Wagner Pty Ltd (No 2) [2009] NSWIRComm 200

Inspector Howard v Connell Wagner Pty Ltd (No 2) [2009] NSWIRComm 200

Both Connell Wagner Pty Ltd and CW-DC Pty Ltd failed to ensure adequate roof support (Type 2 pattern bolting) was installed as required by design between chainage 1190 and 1231 in the Bypass Ventilation Tunnel-East, exposing workers to a serious and foreseeable risk of fatal injury from rock fall, and did not provide warnings or remedial instructions despite objective indicators of risk. Their omissions amounted to high objective seriousness and warranted significant penalty, mitigated only by their guilty pleas, cooperation, remorse, post-incident actions, and unblemished records. Both were convicted and each fined $140,000.

Jurisdiction
Australia
Judgment Date
26 November 2009
Procedural Posture
Prosecution / Sentencing After Guilty Plea
Outcome
Defendants convicted on plea of guilty. Penalties imposed.
Legal Topics
['workplace Safety' 'duty of Care' 'foreseeability' 'general Deterrence' 'specific Deterrence' 'corporate Liability' 'construction Law' 'design Responsibility' 'sentencing Powers']
['occupational Health and Safety' 'criminal Law'] ['workplace Safety' 'duty of Care' 'foreseeability' 'general Deterrence' 'specific Deterrence' 'corporate Liability' 'construction Law' 'design Responsibility' 'sentencing Powers']

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Procedural Posture

Prosecution / Sentencing After Guilty Plea

Legal Issues

  1. 1 ['Whether Connell Wagner Pty Ltd breached s 8(1) of the Occupational Health and Safety Act 2000 by failing to ensure a safe system of work for its employees during the Cross City Tunnel Project between chainages 1190 and 1231, leading to the risk of rock fall and fatality.' 'Whether CW-DC Pty Ltd breached s 10(1) of the Occupational Health and Safety Act 2000 by failing to ensure that the premises (tunnel site) were safe and without risks to health for employees and others during the same period and location.']

Ratio Decidendi

Both Connell Wagner Pty Ltd and CW-DC Pty Ltd failed to ensure adequate roof support (Type 2 pattern bolting) was installed as required by design between chainage 1190 and 1231 in the Bypass Ventilation Tunnel-East, exposing workers to a serious and foreseeable risk of fatal injury from rock fall, and did not provide warnings or remedial instructions despite objective indicators of risk. Their omissions amounted to high objective seriousness and warranted significant penalty, mitigated only by their guilty pleas, cooperation, remorse, post-incident actions, and unblemished records. Both were convicted and each fined $140,000.

Court Disposition

Defendants convicted on plea of guilty. Penalties imposed.

Orders

  • ["Connell Wagner Pty Ltd convicted, fined $140,000 (with a moiety to the prosecutor), and ordered to pay prosecutor's costs as agreed or as ordered by the Court." "CW-DC Pty Ltd convicted, fined $140,000 (with a moiety to the prosecutor), and ordered to pay prosecutor's costs as agreed or as ordered by the Court."]