Inspector James v Kimberly-Clark Australia Pty Ltd [2004] NSWIRComm 142

Inspector James v Kimberly-Clark Australia Pty Ltd [2004] NSWIRComm 142

The defendant failed to ensure workplace safety as required by s 8 of the Occupational Health and Safety Act 2000, leading to a fatality; the breach was objectively serious and foreseeable; penalty assessment is mitigated by guilty plea, contrition, improved safety, and the principle of totality, resulting in fines split between the two charges.

Parties
Prosecutor: Inspector Wayne James; Defendant: Kimberly-Clark Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
08 June 2004
Procedural Posture
Criminal Prosecution / Judgment and Sentencing
Outcome
convicted and sentenced
Legal Topics
Employer Duty of Care, Breaches of Occupational Health and Safety, Workplace Fatality, Sentencing, Deterrence, Penalty Assessment
Occupational Health and Safety Industrial Law Criminal Law Employer Duty of Care Breaches of Occupational Health and Safety Workplace Fatality Sentencing Deterrence +1 more

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Parties

Inspector Wayne James

Prosecutor

Kimberly-Clark Australia Pty Ltd

Defendant

Procedural Posture

Criminal Prosecution / Judgment and Sentencing

Legal Issues

  1. 1 Did the defendant fail to ensure the health, safety and welfare at work of an employee contrary to s 8(1) of the Occupational Health and Safety Act 2000?
  2. 2 Did the defendant fail to ensure that persons other than employees were not exposed to risks to health or safety contrary to s 8(2) of the Occupational Health and Safety Act 2000?
  3. 3 What is the objective seriousness of the offences and the appropriate penalty?

Ratio Decidendi

The defendant failed to ensure workplace safety as required by s 8 of the Occupational Health and Safety Act 2000, leading to a fatality; the breach was objectively serious and foreseeable; penalty assessment is mitigated by guilty plea, contrition, improved safety, and the principle of totality, resulting in fines split between the two charges.

Court Disposition

convicted and sentenced

Orders

  • Defendant found guilty and convicted of each charge.
  • Defendant fined $104,000 in each matter with a moiety to the Workcover Authority of New South Wales.