Inspector Brian Dell v Wyoming Mill Pty Ltd / Inspector Brian Dell v Braith Murray Vidler - [2003] NSWIRComm 267 - NSWIRComm 1992 case summary — Zoe

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Inspector Brian Dell v Wyoming Mill Pty Ltd / Inspector Brian Dell v Braith Murray Vidler

[2003] NSWIRComm 267

Industrial Relations Commission (NSW)|1992-06-30|Before: Boland J, Fisher CJ, Leonard J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Boland J, Fisher CJ, Leonard J

Source

Original judgment source is linked above.

Judgment (88 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Brian Dell v Wyoming Mill Pty Ltd / Inspector Brian Dell v Braith Murray Vidler [2003] NSWIRComm 267 PROSECUTOR Inspector Brian Dell PARTIES : DEFENDANTS Wyoming Mill Pty Ltd Braith Murray Vidler FILE NUMBER: IRC 1906 & 1909 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health & Safety - Section 15 (1) and section 50(1) of the Occupational Health and Safety Act - Corporate and personal defendant - No pleas entered - No appearance by either defendant - Matters proceeded ex-parte - Sawmilling industry - Person sustained fatal injuries when struck by a log forwarder - No safe system of work - Offences proven - Penalties imposed Industrial Relations Commission Rules 1996 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Cullen v State Rail of New South Wales (1989) 31 IR 207 Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Inspector Barber v Storite Pty Limited [2003] NSWIRComm 228 Inspector Brian Dell v Baradine Sawmilling Co Pty Ltd Inspector Brian Dell v Gunnedah Timbers Pty Ltd [2002] NSWIRComm 304 CASES CITED : Inspector Brian Dell v Jeffrey Fitzpatrick [2003] NSWIRComm 69 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) Inspector Neil Buggy v Weathertex Pty Ltd [2002] NSWIRComm 160 Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIR 316 HEARING DATES: 04/28/2003 DATE OF JUDGMENT: 08/14/2003

[12]

6 The particulars of the charge against Braith Murray Vidler were as follows: (a) At all material times, Wyoming Mill Pty Ltd, employed a number of persons, including Wayne Stanley Davison. (b) At all material times, Wyoming Mill Pty Ltd, carried on the business of sawmill operations at Niangala Road, Niangala (the site). (c) At all material times, Wyoming Mill Pty Ltd engaged the services of Suemart Logging Pty Ltd to harvest and supply logs to the sawmill operated by Wyoming Mill Pty Ltd. (d) At all material times, Suemart Logging Pty Ltd operated a log forwarder ("the log forwarder"). (e) At all material times, Wyoming Mill Pty Ltd failed to provide and maintain a safe system of work for the manoeuvring of a log forwarder at the said site. (f) At all material times, Wyoming Mill Pty Ltd failed to provide and maintain a safe system of work for the unloading of logs at the said site. (g) At all material times, Wyoming Mill Pty Ltd failed to provide or maintain a safe system of work to ensure employees were not struck by moving plant at its place of work. (h) At all material times, Wyoming Mill Pty Ltd failed to provide such adequate instructions and information as were necessary to ensure the health and safety of employees at its place of work. (j) At all material times, Wyoming Mill Pty Ltd failed to provide such adequate training as was necessary to ensure the health and safety of employees at its place of work. (k) At all material times, Wyoming Mill Pty Ltd failed to provide adequate supervision as was necessary to ensure the health and safety of its employees at its place of work. (l) As a result of the said failures Wayne Stanley Davison was placed at risk of injury. (m) At all material times, the defendant, Braith Murray Vidler, date of birth: 22 June 1960, was a director of Wyoming Mill Pty Ltd and was present at the site. (n) The defendant, Braith Murray Vidler, being a director of Wyoming Mill Pty Ltd is deemed to have contravened section 15(1) of the Occupational Health and Safety Act 1983, pursuant to section 50(1) of the said Act.

[75]

29 I turn to the question of penalty. As Kirby P stated in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698): [T]he maximum penalty available for an offence reflects the 'public expression' by parliament of the seriousness of the offence ... a large penalty indicates the gravity of the offence as perceived by the community ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 30 The maximum penalty in the case of a breach of s 50(1) by an individual who has not offended previously is $55,000 and the maximum penalty in the case of a breach of s 15(1) by a corporation who has not offended previously is $550,000. 31 In assessing the nature of the penalty to be imposed, the primary consideration is the objective seriousness of the offence. Once the seriousness of the offence is established, it is open to the Court to take into account matters subjective to the defendants. As Hungerford J said in WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce.