Inspector Yeung v Thiess Pty Ltd - [2003] NSWIRComm 325 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Inspector Yeung v Thiess Pty Ltd

[2003] NSWIRComm 325

Industrial Relations Commission (NSW)|1992-11-09|Before: Boland J, Fisher CJ, Leonard J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-11-09

Before

Boland J, Fisher CJ, Leonard J, Mr J

Catchwords

08/05/2003
08/06/2003
08/07/2003
08/12/2003 DATE OF JUDGMENT: 10/10/2003

Source

Original judgment source is linked above.

Catchwords

08/05/200308/06/200308/07/200308/12/2003 DATE OF JUDGMENT: 10/10/2003

Judgment (148 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325 PROSECUTOR Inspector Thomas Yeung PARTIES : DEFENDANT Thiess Pty Ltd FILE NUMBER: IRC 2887 of 2002 CORAM: Boland J CATCHWORDS : Occupational health and safety - Prosecution under section 16(1) of the Occupational Health & Safety Act 1983 - Construction industry - Apprentice - Fall resulting in serious leg injury - Plea of not guilty - Defence under section 53 of Occupational Health & Safety Act - Offence proven LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Bultitude v Grice Constructions Pty Ltd [2002] NSWIRComm 20 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Inspector Anthony John Davies and Prospect Electricity (unreported, matter No CT 747 of 1991, Fisher CJ, 9 November 1992) Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 Inspector Stewart v Siemans Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 CASES CITED : Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 Riley v Australian Grader Hire (2000) 103 IR 143 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (No 1) (1999) 101 IR 253 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 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 (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 HEARING DATES: 08/04/2003; 08/05/2003; 08/06/2003; 08/07/2003; 08/12/2003 DATE OF JUDGMENT: 10/10/2003

[53]

35 It was apparent to everyone at the toolbox meeting whilst they were standing on level 5 looking up that the penetration cover on level 6 was sagging, thereby making it unsafe to work in the vicinity of the penetration. It would appear that Mr Waitai-Tipene assumed the consensus was all of the repair work was to be undertaken from the scaffold inside the smoke shaft in accordance with his instructions. Accordingly, Mr Waitai-Tipene assumed that there was no danger of anyone falling through the compromised penetration cover. Moreover, Mr Waitai-Tipene was aware that a fence had been erected in riser 4, level 6 and the rule on site was that safety fences were not to be removed unless approved by the defendant. That rule had been conveyed to employees of DJD, including Mr McMahon and Mr Leadbitter, and was set out in DJD's work method statement. Additionally, it was a requirement on site that where a person was working more than 1.8 metres above the ground and there was a danger of falling, they were required to wear a safety harness. Mr Leadbitter and Mr McMahon were aware of this requirement. In these circumstances, in instructing Mr McMahon to carry out the repair work, did the defendant satisfy the duty cast upon it under s 16(1) of the Act to ensure persons were not exposed to risk? 36 Mr O'Neill of counsel for the prosecutor contended that the defendant had not discharged its duty. Essentially, it was Mr O'Neill's submission that the defendant's regard for the safety issues involved in repairing the wall was superficial. He submitted that the defendant well understood the detriment to safety represented by the compromised penetration cover once the work platform was removed, that the defendant was aware that fencing was often ignored, that the defendant had not, in accord with usual practice, insisted on a written work method statement being submitted as to how the repair work was to be carried out, that there was no specific instruction to DJD not to undertake any of the repair work in the vicinity of riser 4, level 6 and that Mr Waitai-Tipene was dealing with Mr McMahon on 21 March 2001 and not the usual foreman, Mr Peterson who was absent on that day. As to this last issue, Mr O'Neill submitted there could not have been any confidence on Mr Waitai-Tipene's part that Mr McMahon - a person who Mr Waitai-Tipene did not normally deal with - would carry out the instruction to undertake all of the repair work from inside the smoke shaft and do so in a safe manner.

[57]

40 It is understandable that having discussed the method of undertaking the repair work and having decided that it was to be done from inside the smoke shaft, Mr Waitai-Tipene would not have expected any person to be in the vicinity of the penetration in riser 4, level 6 for the purpose of doing any of that repair work. Putting to one side for the moment the issue of fencing and safety harnesses, and taking in isolation the toolbox meeting on the morning of 21 March 2001, I do not consider the defendant could have been assured that the health and safety of persons would not be put at risk. Apart from an instruction given at the meeting that the work was to be carried out from within the smoke shaft, Mr Waitai-Tipene took no other steps to ensure the work would be carried out safely. Mr Waitai-Tipene usually dealt with Mr Peterson on such matters yet he undertook no follow up with Mr McMahon to ensure that the instructions had been clearly understood or that Mr McMahon was going to undertake the work in a safe manner. It would have been prudent of Mr Waitai-Tipene to at least require a work method statement in relation to the repair work. As Peterson J observed in Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 at par [13], "It is simply insufficient to give general directions and to, effectively, hope for the best." Arising out of the toolbox meeting, Mr Waitai-Tipene could not have been satisfied, to a standard that required the defendant to ensure the health and safety of persons, that Mr McMahon would adopt a safe method of work. 41 In this connection I note the observation of the Full Bench in Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at par [31]: In the context of an employer's obligations under s 16(1) of the Act, we consider it is unhelpful and inappropriate to draw a distinction between specialists and non-specialists. We consider that it is incumbent on employers, regardless of the extent of their specialist knowledge or skill, to satisfy themselves as far as reasonably possible that, indeed, the contractor had the necessary skill and experience to carry out the work for which he or she had been contracted and the tools and equipment to be used were up to the task.

Inspector Yeung v Thiess Pty Ltd

At a glance

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Source

Catchwords

Judgment (148 paragraphs)

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Cases Cited (28)

Cited By (5)