Inspector North v Smith [2011] NSWIRComm 144

Inspector North v Smith [2011] NSWIRComm 144

The agreed facts and the defendant's guilty plea established that, as a self-employed person, he failed to ensure that persons other than his employees, particularly Lee Michael Tapping, were not exposed to risks arising from his undertaking while stripping steel column formwork shutters. The system was inherently dangerous because the remaining shutter was unsecured and persons were not kept clear of the fall zone, and the failures included lack of a safe work method statement, safe system, training, instruction and supervision. The offence was serious and resulted in fatal injuries, but the defendant's culpability was less than Suncoast Formwork's; an early plea, cooperation,...

Jurisdiction
Australia
Judgment Date
02 November 2011
Procedural Posture
Occupational Health and Safety Prosecution / Principal Judgment on Guilty Plea and Penalty
Outcome
Proceedings under s 8(1) dismissed; defendant found guilty and convicted of the offence under s 9; monetary penalty of $5,000 imposed with a moiety to the prosecutor; costs reserved with liberty to apply.
Legal Topics
['breach of S 9 of the Occupational Health and Safety Act 2000' 'duties of Self Employed Persons' 'safe System of Work' 'objective Seriousness' 'penalty' 'early Guilty Plea' 'cooperation With Work Cover Authority' 'contrition and Remorse' 'costs Reserved']
['occupational Health and Safety' 'industrial Law'] ['breach of S 9 of the Occupational Health and Safety Act 2000' 'duties of Self Employed Persons' 'safe System of Work' 'objective Seriousness' 'penalty' 'early Guilty Plea' 'cooperation With Work Cover Authority' 'contrition and Remorse' 'costs Reserved']

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Procedural Posture

Occupational Health and Safety Prosecution / Principal Judgment on Guilty Plea and Penalty

Legal Issues

  1. 1 ['Whether the defendant should be convicted on his guilty plea to the charge under s 9 of the Occupational Health and Safety Act 2000.' "What penalty was appropriate for the defendant's breach, having regard to the objective seriousness of the offence, relative culpability, deterrence, guilty plea, cooperation, contrition and absence of prior convictions." 'Whether the proceedings under s 8(1) of the Occupational Health and Safety Act 2000 should be dismissed after the prosecutor indicated that it would not pursue that charge.']

Ratio Decidendi

The agreed facts and the defendant's guilty plea established that, as a self-employed person, he failed to ensure that persons other than his employees, particularly Lee Michael Tapping, were not exposed to risks arising from his undertaking while stripping steel column formwork shutters. The system was inherently dangerous because the remaining shutter was unsecured and persons were not kept clear of the fall zone, and the failures included lack of a safe work method statement, safe system, training, instruction and supervision. The offence was serious and resulted in fatal injuries, but the defendant's culpability was less than Suncoast Formwork's; an early plea, cooperation,...

Court Disposition

Proceedings under s 8(1) dismissed; defendant found guilty and convicted of the offence under s 9; monetary penalty of $5,000 imposed with a moiety to the prosecutor; costs reserved with liberty to apply.

Orders

  • ['The proceedings brought against the defendant under s 8(1) of the Occupational Health and Safety Act 2000 are dismissed.' 'The defendant, Edward John Smith, is found guilty of the offence under s 9 with which he is charged and convicted accordingly.' 'I impose a monetary penalty of $5,000 on the defendant, Edward...