WorkCover Authority of NSW (Insp Guillarte) v Genner Constructions Pty Ltd [2000] NSWIRComm 87

WorkCover Authority of NSW (Insp Guillarte) v Genner Constructions Pty Ltd [2000] NSWIRComm 87

Although there was a proper safe system of work in place, Genner Constructions Pty Ltd breached its absolute duty by failing to properly train and instruct its worker about vehicular access and egress and about authority to alter site procedures. The risk of injury was foreseeable and preventable by appropriate training and instruction, making s10 relief inappropriate. Mitigating factors, including no prior convictions, a good industrial record, contrition, and comprehensive post-incident safety improvements, reduced the penalty. Because the two proven charges arose from the same incident, the totality principle required a total fine of $65,000 rather than two separate $40,000 fines.

Jurisdiction
Australia
Judgment Date
06 June 2000
Procedural Posture
Prosecution Under S 15(1) of the Occupational Health and Safety Act 1983 / Judgment as to Penalty After Prior Liability Judgment in Which Two Charges Were Found Proven and Three Charges Dismissed
Outcome
Defendant found guilty on both proven summonses; s10 application rejected; total fine imposed with costs to the prosecutor.
Legal Topics
['penalty for Breach of Employer Duty Under S 15(1) of the Occupational Health and Safety Act 1983' 'training and Instruction of Workers' 'safe System of Work' 'application of S10 Crimes (sentencing Procedure) Act 1999' 'totality Principle']
['occupational Health and Safety' 'industrial Relations' 'sentencing'] ['penalty for Breach of Employer Duty Under S 15(1) of the Occupational Health and Safety Act 1983' 'training and Instruction of Workers' 'safe System of Work' 'application of S10 Crimes (sentencing Procedure) Act 1999' 'totality Principle']

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Procedural Posture

Prosecution Under S 15(1) of the Occupational Health and Safety Act 1983 / Judgment as to Penalty After Prior Liability Judgment in Which Two Charges Were Found Proven and Three Charges Dismissed

Legal Issues

  1. 1 ['What penalty should be imposed for two proven breaches of s 15(1) of the Occupational Health and Safety Act 1983 arising from lack of training and instruction as to vehicular access and egress from a worksite.' 'Whether the circumstances justified an order under s10 of the Crimes (Sentencing Procedure) Act 1999 without recording a conviction.' 'How the principle of totality should be applied to two charges arising out of the same incident.']

Ratio Decidendi

Although there was a proper safe system of work in place, Genner Constructions Pty Ltd breached its absolute duty by failing to properly train and instruct its worker about vehicular access and egress and about authority to alter site procedures. The risk of injury was foreseeable and preventable by appropriate training and instruction, making s10 relief inappropriate. Mitigating factors, including no prior convictions, a good industrial record, contrition, and comprehensive post-incident safety improvements, reduced the penalty. Because the two proven charges arose from the same incident, the totality principle required a total fine of $65,000 rather than two separate $40,000 fines.

Court Disposition

Defendant found guilty on both proven summonses; s10 application rejected; total fine imposed with costs to the prosecutor.

Orders

  • ['In summons No IRC4898 of 1998 the defendant is found guilty.' 'In summons No IRC4900 of 1998 the defendant is found guilty.' 'In summons No IRC4898 of 1998 the defendant is fined $40,000.' 'In summons No IRC4890 of 1998 the defendant is fined $40,000.' 'In application of the principle of totality the defendant is...