Orr v LD Operations Pty Limited [2019] NSWDC 727

Orr v LD Operations Pty Limited [2019] NSWDC 727

The offender, as a duty holder and Mr Pedersen's employer, failed to ensure so far as reasonably practicable the health and safety of workers by not requiring adequate systems, audits, inspections and training to address the foreseeable risk that vehicle contact with roof infrastructure could damage a W-strap and expose workers to death or serious injury. Although the particular pleaded risk was not actually foreseen, it should have been foreseen, the potential consequences were very serious, reasonably practicable controls were available and not onerous, and culpability was in the mid range. Taking into account deterrence, substantial injury, mitigating factors and a 15% discount for the...

Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Criminal Prosecution for Breach of Work Health and Safety Duty Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty
Outcome
The offender was convicted and fined $136,000 after a 15% reduction for the plea of guilty, with 50% of the fine to be paid to the prosecutor and costs payable as agreed or assessed.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'underground Coal Mine Safety' 'risk of Death or Serious Injury' 'objective Seriousness' 'foreseeability of Risk' 'general Deterrence' 'specific Deterrence' 'mitigating Factors' 'aggravating Factors' 'parity' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'underground Coal Mine Safety' 'risk of Death or Serious Injury' 'objective Seriousness' 'foreseeability of Risk' 'general Deterrence' 'specific Deterrence' 'mitigating Factors' 'aggravating Factors' 'parity' 'prosecution Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecution for Breach of Work Health and Safety Duty Contrary to S 32 of the Work Health and Safety Act 2011 (nsw) / Sentence After Plea of Guilty

Legal Issues

  1. 1 ['Whether the offender failed to comply with its work health and safety duty and exposed Mr Benjamin Pedersen to a risk of death or serious injury.' 'Whether the pleaded risk involving a damaged W-strap falling into the roadway space was actually foreseen or merely foreseeable.' 'What objective seriousness and culpability attached to the offence.' 'What weight should be given to deterrence, aggravating factors, mitigating factors, the guilty plea, parity with LakeCoal, and capacity to pay.' 'What fine and costs orders should be imposed.']

Ratio Decidendi

The offender, as a duty holder and Mr Pedersen's employer, failed to ensure so far as reasonably practicable the health and safety of workers by not requiring adequate systems, audits, inspections and training to address the foreseeable risk that vehicle contact with roof infrastructure could damage a W-strap and expose workers to death or serious injury. Although the particular pleaded risk was not actually foreseen, it should have been foreseen, the potential consequences were very serious, reasonably practicable controls were available and not onerous, and culpability was in the mid range. Taking into account deterrence, substantial injury, mitigating factors and a 15% discount for the...

Court Disposition

The offender was convicted and fined $136,000 after a 15% reduction for the plea of guilty, with 50% of the fine to be paid to the prosecutor and costs payable as agreed or assessed.

Orders

  • ['The offender is convicted.' 'The appropriate fine is $160,000 but that will be reduced by 15% to reflect the plea of guilty.' 'Order the offender to pay a fine of $136,000.' 'Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' "Order the offender to pay the...