Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 755

Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 755

The defendant, as a person conducting a business or undertaking with management or control of the hoist, breached his statutory duty under s 32 Work Health and Safety Act 2011 by failing to take reasonably practicable steps to eliminate or minimise the risk of the bucket free falling and causing death. While the modifications were not simple due to design faults outside the defendant’s responsibility, reasonably practicable steps were available and known risks were not adequately addressed. The sentence must balance the gravity of the risk, the defendant’s partial compliance, his good character, prospects of rehabilitation, and the seriousness of harm caused.

Parties
Prosecutor: Anthony Linnane (NSW Department of Planning and Environment); Defendant: Tony Glenn Cummings
Jurisdiction
Australia
Judgment Date
14 December 2020
Procedural Posture
Criminal / Sentencing After Conviction at Trial
Outcome
Conviction; sentence imposed
Legal Topics
Statutory Duty of Pcbus, Management or Control of Plant, Exposure of Workers to Risk, Sentencing, Deterrence, Mitigating and Aggravating Factors
Criminal Law Employment and Industrial Law Work Health and Safety Statutory Duty of Pcbus Management or Control of Plant Exposure of Workers to Risk Sentencing Deterrence +1 more

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Parties

Anthony Linnane (NSW Department of Planning and Environment)

Prosecutor

Tony Glenn Cummings

Defendant

Procedural Posture

Criminal / Sentencing After Conviction at Trial

Legal Issues

  1. 1 Whether the defendant breached the statutory duty under s 32 Work Health and Safety Act 2011 as a person with management or control of plant to ensure health and safety of workers so far as reasonably practicable
  2. 2 Appropriate sentence for breach resulting in exposure of a worker to risk of death or serious injury

Ratio Decidendi

The defendant, as a person conducting a business or undertaking with management or control of the hoist, breached his statutory duty under s 32 Work Health and Safety Act 2011 by failing to take reasonably practicable steps to eliminate or minimise the risk of the bucket free falling and causing death. While the modifications were not simple due to design faults outside the defendant’s responsibility, reasonably practicable steps were available and known risks were not adequately addressed. The sentence must balance the gravity of the risk, the defendant’s partial compliance, his good character, prospects of rehabilitation, and the seriousness of harm caused.

Court Disposition

Conviction; sentence imposed

Orders

  • Tony Glenn Cummings is convicted.
  • A fine of $70,000 is imposed on the defendant.