Inspector Mansell v Eleven Lighting Pty Ltd - [2002] NSWIRComm 339 - NSWIRComm 2002 case summary — Zoe

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Inspector Mansell v Eleven Lighting Pty Ltd

[2002] NSWIRComm 339

Industrial Relations Commission (NSW)|2002-12-12|Before: Marks J, Ms J, Goot AM

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-12-12

Before

Marks J, Ms J, Goot AM

Catchwords

06/26/2002 DATE OF JUDGMENT: 12/12/2002

Source

Original judgment source is linked above.

Catchwords

06/26/2002 DATE OF JUDGMENT: 12/12/2002

Judgment (52 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Mansell v Eleven Lighting Pty Ltd [2002] NSWIRComm 339 PROSECUTOR Inspector Paul Mansell PARTIES : DEFENDANT Eleven Lighting Pty Ltd FILE NUMBER: IRC 4406 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecution - Plea of guilty - Defendant submitted that its means to pay a fine should be considered - Application of s 6 Fines Act to corporate defendants - Onus and evidence required - Application rejected - Fine imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Fines Act 1996 s 6 Haynes v C I & D Manufacturing (1995) 60 IR 455 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Smith v The Queen (1991) 25 NSWLR 1 Cheshire (1994) 76 A CrimR 261 Queen v Belcher (1981) 27 SASR 46 WorkCover Authority of NSW v Taylor (2002) NSWIRComm 9 CASES CITED : WorkCover Authority of NSW v Newstart 150 Pty Ltd (2002) NSWIRComm 64 WorkCover Authority of NSW v Milltech Pty Ltd (2001) NSWIRComm 192 WorkCover Authority of NSW v Yass Shire Council (2000) NSWIRComm 57 Manpac Industries Pty Ltd v WorkCover Authority of NSW (2001) NSWIRComm 190 WorkCover Authority of NSW v Converquip (2001) NSWIRComm 85 R v Olbrich (1999) 199 CLR 270 Kaye v Bagg (No 2) (1984) 11 ACrim 127 HEARING DATES: 02/20/2002; 06/26/2002 DATE OF JUDGMENT: 12/12/2002

[6]

2 An agreed statement of facts was tendered in the proceedings which sets out not only the relevant factual material but also the particulars of the charge. I set out below relevant parts of the statement of facts. "4. At all material times Eleven Lighting Pty Ltd was an incorporated company with its registered office located at 454-456 Pacific Highway St Leonards in the state of New South Wales (the "Defendant"). 5. At all material times the Defendant: (i) carried on the business of production of lighting products which were stored in a warehouse ("warehouse") situated at premises located at 48 Percy Street, Auburn in the state of New South Wales ("premises"); (ii) employed Ping (Connie) Wu ("Wu") as a production supervisor/coordinator in the premises; (iii) leased a Crown Heavy Duty Walkie Stacker Model 30WTF 174 Serial No. SVH2496 pedestrian operated electric forklift ("forklift") from Crown Equipment Pty Ltd; (iv) employed Hui (Ben) Min Kang ("Kang") who was Wu's husband as a supervisor and Jon Garton ("Garton") as a general manager at the premises; and (v) stored lighting products ("stock") in a system of storage racks consisting of steel and timber shelving ("shelves") in the warehouse. 6. On 5 July 1999, Wu sustained serious injuries to her spine resulting in paraplegia when she fell from a pallet on which she was standing which was elevated on the tynes of the forklift. 7. Wu had been asked to locate and retrieve a carton containing a diffuser exit sign ("Exit sign") located on the shelves. The box containing the Exit Sign weighed approximately 488 grams. 8. Part of the area in front of the shelves was obstructed by a bundle of aluminium sections wrapped in brown paper and tied with wire and timber pieces. The bundle of aluminium sections was approximately 6.5m long, 400mm wide and 350mm high. On the ground in front of the aluminium sections was a pallet. The aluminium sections and the pallet obstructed the area in front of the shelves and effectively prevented a ladder being used by Wu to locate and retrieve the carton containing the Exit sign. 9. Wu sought the assistance of Kang who brought the forklift and positioned it at an angle facing towards the shelves as he could not position it directly in front of the shelves because f the obstructed access. 10. Wu then stood on the pallet located on the forklift tynes and Kang raised the pallet to enable Wu to access the third shelf which was approximately 1.5m from the ground. The pallet was not directly in front of the third shelf and was at an angle due to the angled position of the forklift. 11. As Wu was lifted to the third shelf she located the Exit sign. Wu then lifted up the carton containing the Exit sign, turned around, leaned down and placed the Exit sign on the pallet. Wu then stood up but in doing so lost her balance, fell from the pallet and landed across the pallet with the boxes awaiting shipping on the ground referred to in para 8. Wu struck her back and head on the edge of the pallet. 12. The forklift was being operated by Kang. The Company had not shown Kang how to operate the forklift. 13. The Defendant did not have a safe system of work for the retrieval of stock located on the shelves. 14. The Defendant's employees, and in particular Wu and Kang, were not instructed that accessing stock located on the shelves by a person standing on a pallet raised by a forklift was prohibited. 15. The Defendant did not provide adequate instruction, training and supervision to Wu and Kang concerning safe working procedures for the retrieval of stock on shelves. 16. On 22 October 1999, the Prosecutor attended the premises and observed as follows: a) A building divided into a manufacturing section and a warehouse, the dimensions being approximately 29m long x 22m wide by 8m high. The concrete floor was of a steel trowelled finish. b) The shelves were located within the warehouse. The shelves were approximately 9m long by 840mm wide by 6m high. The distance between the shelves on the southern end of the warehouse was approximately 3m. c) Where the accident occurred the following shelf dimensions were recorded: (i) Floor to first shelf - 380mm (ii) Floor to second shelf - 885mm (iii) Floor to third shelf - 1.5m (iv) Floor to fourth shelf - 2m d) The area was illuminated with 5 mercury vapour flood lights and 2 fluorescent lights. e) The forklift was standing within the warehouse. The forklift had a maximum lift height of 4.420m with a capacity of 1,360 kilos, truck weight of 1,340 kilos with tynes being 1.080m in length. f) Attached to the mast assembly of the forklift was a sticker with a symbol warning not to ride on the tynes. 17. Prior to the accident, the forklift had been regularly used to raise people to access the shelves. 18. The Prosecutor alleges that the Defendant, Eleven Lighting Pty Ltd, an employer, breached s 15(1) of the Occupational Health and Safety Act 1983 on 5 July 1999 at its premises in that it failed to ensure the health, safety and welfare at work of its employees, in particular Ping (Connie) Wu, in that it failed to provide a system of work that was safe and without risks to health for the retrieval of stock located in a system of shelves in a warehouse. In particular a) The Defendant's employees, and in particular Wu and Kang, were not instructed that accessing stock located on the shelves by raising a person on a pallet by medium of a forklift was prohibited. b) The Defendant did not provide adequate instruction, training and supervision to Wu and Kang concerning safe working procedures for the retrieval of stock on shelves. c) The Defendant failed to ensure aisles between the shelves were free of obstructions. d) The Defendant had no written procedures in place for the retrieval of stock located on the shelves. e) The Defendant failed to provide adequate information, instruction, and supervision to Kang concerning the safe use and operation of the forklift. f) The Defendant's failure to provide a system of work that was safe and without risks to health for the retrieval of stock located in shelves caused Wu to fall and suffer injuries which resulted in her becoming a paraplegic."

[14]

10 There can be no doubt that this Court is obliged to take into account the means of the defendant to pay any penalty. So much is clear from the provisions of s 6 of the Fines Act 1996, to which I shall return later, and from observations made, for example, by a Full Court of the Industrial Court of New South Wales in Haynes v C I & D Manufacturing (1995) 60 IR 455. At 457 the Full Bench said: "An issue to which the Court was taken obliquely was the manner in which we should deal with pleas of impecuniosity when considered the fine to be levied. The penalty which the legislature has made applicable to breaches of the OHS Act is a fine, and, as was pointed out by Cullen J in Gordon v MIJO (NSW) Pty Ltd (unreported, Cullen J, 2 December 1993, Matter No CT1002 of 1993), the legislature itself introduced a differentiation of penalty by providing that there should be a different penalty for corporate defendants from that for personal defendants. In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind. (see Gordon v MIJO (NSW) Pty Ltd; Ford v Warrah Ridge Pastoral Company Pty Ltd (unreported Bauer J, 23 September 1994, Matter No CT1109 of 1993); Robins v C T Plumbing Pty td (unreported, Fisher P, 16 December 1991, Matter No 522 of 1991) and Mauger v Kremar Engineering Pty Ltd (1993) 47 IR 359). We consider that as precedent has developed there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied."

[22]

18 Without traversing in detail many of the authorities which were cited in the lengthy and helpful submissions of the parties, it is clear that the thrust of the general law is that a fine should not be imposed which is beyond the capacity of a defendant to pay. There are, however, exceptions. One such exception is to be found in the approach of the majority of the New South Wales Court of Appeal in Smith v The Queen (1991) 25 NSWLR 1. The defendant Arthur Stanley Smith was serving a life sentence for a number of offences. He was required to give evidence in criminal proceedings brought against another person. Mr Smith declined in the trial of that other person to give any evidence. He was cited for contempt and convicted. The judge at first instance imposed a fine of $60,000 which was beyond the capacity of Mr Smith to pay. Nevertheless, that fine was upheld by a majority on appeal. Mahoney JA noted that imposing a further sentence of imprisonment would have no "great effect" on Smith because he was then presently incarcerated for life. If imprisonment was thereby rendered inappropriate then in his Honour's opinion the fine remained the appropriate punishment to be imposed, albeit that enforcement might not be possible. His Honour said: "A fine should not, of course, be excessive. That needs no argument: it is the common law, and in my respectful opinion, commonsense. But to say that is to state the problem, not to solve it. The question is: what is excessive and why. This was a case of murder, and if the facts proposed be true, a brutal murder. The costs wasted on the trial and the proposed retrial will be significant. If what was done by Mr Smith is to be marked appropriately in the eyes of those concerned, I would not see $60,000 as excessive." (at 24). Meagher JA thought that in all the circumstances a fine of $60,000 was imposed "with some benevolence." His Honour concluded, "If we had power to do so, I think we should increase the fine. But he has appealed against the amount of the fine alleging it to be excessive - on no better ground than he has had an excess of impecuniosity. If he was rich enough to commit a calculated contempt of court, he is rich enough to bear the consequences." (at 24).

[36]

28 In the particular context of consideration as to the means and capacity to pay of a defendant, Legoe J in the Full Bench of the Supreme Court of South Australia in The Queen v Belcher said: "One final matter, which I mentioned in argument to counsel for the Crown, is the difficult position which the sentencing Judge is placed in when questions such as the imposition of a fine in addition to a sentence of imprisonment arise, and where funds are apparently in the possession of the prisoner not being the subject of a confiscation order. This is a practical consideration concerning the relevant duties of counsel both for the prisoner and for the Crown, and the investigating authorities. In most cases of offences under the Narcotic and Psychotropic Drugs Act, there is some material contained in the investigating officer's evidence relating to the moneys held by the prisoner. In my opinion, it is clearly relevant for the court, when it comes to sentence the prisoner, to be fully acquainted with the source of these funds so far as that is possible to ascertain. When the time comes for submissions to be made in mitigation of penalty, clearly the onus is upon the prisoner himself to disclose, and fully disclose, the funds in his possession and the source of those funds. The Crown should check this information in order to assist the court in determining the propriety of imposing a fine in the circumstances and the amount thereof. Furthermore, the prisoner should inform the court of his financial circumstances so as the court can be satisfied as to his ability to pay a fine. This, of course, would be particularly so where submissions in mitigation pressed for the imposition of a fine, either as an alternative to a term of imprisonment, or in mitigation, or reduction of the actual term of imprisonment. The court cannot be inquisitorial in relation to these matters, and prisoners who decline to assist the court in this regard cannot expect Courts of Appeal to place much weight on the argument that the imposition of a fine in addition to imprisonment is wrong, when funds are apparently in the prisoner's possession at the time of the investigation and indicate an ability to pay the fine." (at 43-54).

Inspector Mansell v Eleven Lighting Pty Ltd

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Judgment (52 paragraphs)

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Cases Cited (6)

Cited By (10)