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[2003] TASSC 82
Supreme Court of Tasmania
2003-09-03
Slicer J
Original judgment source is linked above.
This matter involved an employee of Plastic Fabrications Pty Ltd receiving facial injuries when he was struck by an exploding float he was pressure testing at the time.
A 12 year old boy was injured when his trouser leg came into contact with an unguarded power take off shaft which attached to a Grasslands roller mill on one end and a blue Ford 5000 tractor at the other end. Later, the boy's leg was amputated.
A 19 year old was killed when a 25 metre log (cable logging operation) which was being hauled in, swung around and struck the deceased in the chest and head region. The investigation revealed the log was attached in the middle region which caused it to swing, striking the uphill bank and then the deceased. The deceased was not a safe distance away from the area.
On the 21/4/98 Boral Resources (Tas) Pty Ltd initiated a blast at its Quarry, the purpose was to widen an access road. Several pieces of fly rock were ejected from the area into the sawmill next door.
On the 5/9/97 two employees were leaning into the skip container and the skip moved with both employees, sustaining injury. The skips had not been isolated prior to entering the lower level of the mine. Also there was a lack of guards and barriers and there was inadequate warning signs.
Lend Lease Property Services Pty Ltd formally Civil & Civic Pty Ltd
On 10/9/97 two contractors of Lend Lease Property Services suffered electrical burns and shock whilst working in a high voltage sub-station at the Starwood MDF Plant at Bell Bay.
Donald Edwin Russell, Director of Russell Bros Pty Ltd
On the 15/8/98 an employee of Russell Bros Pty Ltd, whilst in the process of removing onions from a top and tail machine had her hand caught between the rollers in the machine. The accident necessitated the amputation of four fingers on her right hand and damage to the palm of the hand. There was no guard on the machine.
Sec 20 (C)
On or about 19/8/98 David Dowden did spray and ignite CRC through a vent hole in a toilet door at a workplace as an employee was sitting on the toilet, causing burns to the sleeve area of the persons overalls.
Charge found proven. No conviction placed on good behaviour for 12 months.
Sec 9 (1)(a)(i)
Two employees who were cleaning inside a cool room using a forklift truck received carbon monoxide poisoning.
Sec 9 (1)(c)
A young worker had his arm caught in a running conveyor system and wasn't discovered until some 3 hours after the accident.
Sec 9 (1)(c) Sec f53(1)
A log truck driver was struck with a log during unloading at Boyer.
The prosecution involved a fatality during a tree felling at the Spreyton Race Course on 20/7/99
The prosecution is a result of an incident on 29 April 1999 when an employee whilst attempting to clean out then water jets of a potato washing machine slipped and fell into the machine causing his right arm to be crushed
The prosecution is a result of an employee who received acid burns to the groin area, feet hands, forearms and left eye when a PVC pipe fractured whilst transferring chromic acid from a holding tank to a service tank on the 26 May 1999.
John Joseph White (Managing Director) of above Company
The prosecution is a result of an employee who received acid burns to the groin area, feet , hands, forearms and left eye when a PVC pipe fractured whilst transferring chromic acid from a holding tank to a service tank on the 26 May 1999.
The prosecution is a result of a fatality of an employee on the 18/2/00 whilst working at the workplace of Tasmanian Alkaloids Pty Ltd situated at Birralee Road, Westbury. The employee was at the time employed by Skilled Engineering who were engaged by Tasmanian Alkaloids Pty Ltd to carry out in part welding of a threaded sleeve to a pipe work connected to a tank.
The prosecution is a result of an incident on 18/10/99 at East Devonport when an employee was cutting tops out of 44 gallon drums with an oxyacetylene torch when there was an explosion and an ensuring fire. The employee sustained injuries from the incident.
The prosecution is as a result of the erection of a scaffold on 25 Feb 2000 which was not safe for use and the scaffolder failed to inspect the scaffold prior to passing it safe for use.
The prosecution is as a result of the erection of a scaffold on 25 Feb 2000 which was not safe for use and the scaffolder failed to inspect the scaffold prior to passing it safe for use.
The prosecution is as a result of accident to am employee at a walnut farm at Swansea. At the time of the accident the employee was working on the back of a hopper attached to a tractor for the purposes of injecting gypsum into the soil. The hopper was unguarded and bolts which had protruding heads were fastening the augur to the drive shaft. Later the employee's jumper became caught in the augur bolts which caused severe damage to his left arm.
Sec 9(1)(a)(ii), 9(a)(iii), 9(1)(c)
The charges relate to an incident on the 13/9/99 on the west coast when an employee was working for Williams Quarry Pty Ltd on a crushing plant. The plant was experiencing problems and when the employee attempted to fix the problem his right hand became trapped in the drum of the conveyor belt of the crushing plant.
The prosecution relates to an incident on the 25th of September whilst an employee at the Burnie Port Corporation Pty Ltd was filling a LPG cylinder and left it unattended for approx 3 hours, the LPG escaping into the atmosphere.
Lactos Pty Ltd
Kent [2003] TASSC 82
Plastic Fabrications Pty Ltd v The Crown [1999] TASSC 95, distinguished.
X_L Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd_ [1985] HCA 12; (1985) 155 CLR 448; Burton v R [2002] TASSC 64; Franklin v R 82/1991, considered.
7 The sole ground of appeal is that the penalty imposed was "manifestly excessive in all the circumstances of the case". Refined, the basis extended to the requirement of consistency in sentence and relied on material placed before the Court indicating the range of penalties imposed to show that the penalty in the present case was both excessive and inconsistent with comparable cases. Given the paucity of helpful material in cases involving industrial safety, publication of that material might prove useful to courts of summary jurisdiction and, accordingly, the material is included as Annexure A at the end of these reasons for decision. Yardley v Betts [1979] SASR 108.
"In determining whether imposing a fine of 25 per cent of the maximum penalty is excessive, it is appropriate to bear in mind that 'the maximum penalty prescribed for an offence is attended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs [1987] HCA 46; (1987) 163 CLR 447 at 451; [1987] HCA 46; 27 A Crim R 465 at 468.
15 Counsel for the appellant sought to show manifest error by reference to the range of penalties imposed by summary courts for breaches of the legislation. The list is a thorough and useful guide and the Court is obliged to Mr Williams, the public officer who compiled it and who attended the hearing of the appeal to present it. A component of counsel's argument depends on the principles associated with "justifiable grievance" (Lowe v R [1984] HCA 46; (1984) 154 CLR 606) and the need for consistency (Burton v R [2002] TASSC 64), although there are many problems associated with this methodology (Franklin v R 82/1991, and see generally Burton, pars39 - 41).
(1985) 155 CLR 448
(1987) 163 CLR 447
(1984) 154 CLR 606