Inspector Vierow v Ridge Consolidated Pty Ltd [2002] NSWIRComm 254

Inspector Vierow v Ridge Consolidated Pty Ltd [2002] NSWIRComm 254

The trial judge erred by focusing on foreseeability of the accident and the buddy system rather than on whether it was reasonably practicable for the respondent to provide a person to guide and control the reversing truck, the system of work alleged in the charge. There was no evidence that providing such a person was not reasonably practicable, so the s 53(a) defence was not established and the charge was proven.

Jurisdiction
Australia
Judgment Date
23 September 2002
Procedural Posture
Application for Leave to Appeal and Appeal Against Dismissal of an Occupational Health and Safety Charge / Leave to Appeal Granted; Appeal Upheld; Charge Found Proven; Proceedings Stood Over for Submissions on Penalty and Costs
Outcome
Leave to appeal granted; appeal upheld; dismissal of the charge and costs decision set aside; charge found proven; matter stood over for submissions on penalty and costs.
Legal Topics
['appeal From Acquittal' 'employer Duty to Ensure Health, Safety and Welfare at Work' 'safe System of Work' 'traffic Control at Construction Site' 'section 53(a) Defence' 'reasonably Practicable Compliance' 'remittal After Appeal']
['occupational Health and Safety' 'industrial Relations'] ['appeal From Acquittal' 'employer Duty to Ensure Health, Safety and Welfare at Work' 'safe System of Work' 'traffic Control at Construction Site' 'section 53(a) Defence' 'reasonably Practicable Compliance' 'remittal After Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Against Dismissal of an Occupational Health and Safety Charge / Leave to Appeal Granted; Appeal Upheld; Charge Found Proven; Proceedings Stood Over for Submissions on Penalty and Costs

Legal Issues

  1. 1 ['Whether the trial judge erred in finding that the respondent established the defence under s 53(a) of the Occupational Health and Safety Act 1983.' 'Whether the respondent had failed to provide or maintain a safe system of work by not providing a person to guide and direct the reversing truck.' 'Whether the proceedings should be remitted to the trial judge after a successful appeal.']

Ratio Decidendi

The trial judge erred by focusing on foreseeability of the accident and the buddy system rather than on whether it was reasonably practicable for the respondent to provide a person to guide and control the reversing truck, the system of work alleged in the charge. There was no evidence that providing such a person was not reasonably practicable, so the s 53(a) defence was not established and the charge was proven.

Court Disposition

Leave to appeal granted; appeal upheld; dismissal of the charge and costs decision set aside; charge found proven; matter stood over for submissions on penalty and costs.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' "His Honour's decisions dismissing the charge and as to costs are set aside." 'We find the charge brought against the respondent proven.' 'The proceedings are stood over to a date to be fixed for the parties to make submissions with respect to penalty and costs.']