Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31

Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31

The defendant, as subcontractor and operator of heavy vehicles, failed to independently ensure and maintain safe systems for the movement of vehicles around pedestrians, by omitting to require a spotter and to implement adequate communication and risk assessment measures, resulting in foreseeable fatal risk to a non-employee on site. Despite some confusion over the allocation of responsibilities under the contract, the statutory OHS duty prevailed. Early plea, good prior record and subsequent improvements in safety practices mitigated penalty, but the gravity of the risk and foreseeability required a significant fine.

Jurisdiction
Australia
Judgment Date
29 March 2011
Procedural Posture
Criminal Prosecution Occupational Health and Safety / Judgment on Plea of Guilty and Sentencing
Outcome
Defendant found guilty on plea. Substantial monetary penalty imposed with standard allowance for early plea. Costs reserved for later assessment.
Legal Topics
['workplace Safety' 'employer Obligations' 'duties of Subcontractors' 'risk Assessment' 'safe Systems of Work' 'traffic Control on Worksites' 'spotter Requirement' 'sentencing Principles' 'aggravating and Mitigating Factors']
['occupational Health and Safety' 'industrial Law' 'criminal Law (sentencing)'] ['workplace Safety' 'employer Obligations' 'duties of Subcontractors' 'risk Assessment' 'safe Systems of Work' 'traffic Control on Worksites' 'spotter Requirement' 'sentencing Principles' 'aggravating and Mitigating Factors']

Case Brief

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Procedural Posture

Criminal Prosecution Occupational Health and Safety / Judgment on Plea of Guilty and Sentencing

Legal Issues

  1. 1 ['Whether the defendant contravened s 8(2) of the Occupational Health and Safety Act 2000 (NSW) by failing to ensure non-employees were not exposed to health and safety risks at the workplace' 'Appropriate penalty having regard to objective seriousness, mitigating factors, and principles of sentencing for breach of occupational health and safety legislation']

Ratio Decidendi

The defendant, as subcontractor and operator of heavy vehicles, failed to independently ensure and maintain safe systems for the movement of vehicles around pedestrians, by omitting to require a spotter and to implement adequate communication and risk assessment measures, resulting in foreseeable fatal risk to a non-employee on site. Despite some confusion over the allocation of responsibilities under the contract, the statutory OHS duty prevailed. Early plea, good prior record and subsequent improvements in safety practices mitigated penalty, but the gravity of the risk and foreseeability required a significant fine.

Court Disposition

Defendant found guilty on plea. Substantial monetary penalty imposed with standard allowance for early plea. Costs reserved for later assessment.

Orders

  • ['Defendant found guilty of the offence as charged in Matter No IRC328 of 2010.' 'Defendant fined $120,000 with a moiety to WorkCover Authority of New South Wales.' 'Defendant to pay costs of the Prosecutor, with quantification of costs to be determined if no agreement is reached. Leave to re-list at short notice.']