Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd [2012] NSWIRComm 2

Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd [2012] NSWIRComm 2

PSM was found to have breached its obligations as an employer by failing to implement and maintain adequate systems of communication and liaison with both the constructor and designers regarding design non-compliance and ground conditions, failing to review and notify about safety risks, and failing to prevent employees and others from working in areas where there was a foreseeable and realised risk of tunnel collapse. These breaches were causally linked to the risk and occurrence of the tunnel roof collapse, exposing both employees and non-employees, including residents, to significant safety risks as prohibited under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000.

Parties
Prosecutor: Inspector Nathan Hamilton; Defendant: Pells Sullivan Meynink Pty Ltd; Prosecutor: WorkCover Authority of New South Wales
Jurisdiction
Australia
Judgment Date
17 February 2012
Procedural Posture
Criminal / Conviction Following Ex Parte Hearing
Outcome
Defendant found guilty and convicted on both charges; matters set down for directions hearing for sentence.
Legal Topics
Employer Duties, Risk to Health and Safety, Causal Nexus in OHS Breaches, Liaison Obligations Between Contractors and Designers, Tunnel Collapse Liability
Industrial Law Occupational Health and Safety Employer Duties Risk to Health and Safety Causal Nexus in OHS Breaches Liaison Obligations Between Contractors and Designers Tunnel Collapse Liability

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Parties

Inspector Nathan Hamilton

Prosecutor

Pells Sullivan Meynink Pty Ltd

Defendant

WorkCover Authority of New South Wales

Prosecutor

Procedural Posture

Criminal / Conviction Following Ex Parte Hearing

Legal Issues

  1. 1 Whether PSM was an employer at the relevant time under the Occupational Health and Safety Act 2000
  2. 2 Whether employees and non-employees were exposed to health or safety risks due to the conduct of PSM's undertaking
  3. 3 Whether the risks arose from inadequate systems of communication/liaison and failure to prevent work in unsafe conditions

Ratio Decidendi

PSM was found to have breached its obligations as an employer by failing to implement and maintain adequate systems of communication and liaison with both the constructor and designers regarding design non-compliance and ground conditions, failing to review and notify about safety risks, and failing to prevent employees and others from working in areas where there was a foreseeable and realised risk of tunnel collapse. These breaches were causally linked to the risk and occurrence of the tunnel roof collapse, exposing both employees and non-employees, including residents, to significant safety risks as prohibited under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000.

Court Disposition

Defendant found guilty and convicted on both charges; matters set down for directions hearing for sentence.

Orders

  • In Application for Order IRC 1991 of 2007, the defendant is found guilty of the offence and convicted.
  • In Application for Order IRC 1992 of 2007, the defendant is found guilty of the offence and convicted.