WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service - [2001] NSWIRComm 326 - NSWIRComm 2001 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service

[2001] NSWIRComm 326

Industrial Relations Commission (NSW)|2001-12-07|Before: Hungerford J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-12-07

Before

Hungerford J

Source

Original judgment source is linked above.

Judgment (60 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service [2001] NSWIRComm 326 PROSECUTOR WorkCover Authority of New South Wales (Inspector Fiona Stewart) PARTIES : DEFENDANT Central Sydney Area Health Service FILE NUMBER: IRC 5919 and 5920 of 2000 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecutions for failure to ensure safety of employees and patients in intensive care unit of a public hospital - Fire from use of oxy-acetylene welding equipment - Equipment not in good order and repair - Objective seriousness of offences - Mitigation of penalty - Pleas of guilty - Crown to be sentenced on same basis as any other defendant - Principle of totality - Defendant convicted - Fines imposed, with moiety to prosecutor - Costs. LEGISLATION CITED : Health Services Act 1997 Pt 1 of Ch 3 Occupational Health and Safety Act 1983 s 6 s 15(1) s 16(1) Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 181 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 HEARING DATES: 06/14/2001 DATE OF JUDGMENT: 12/07/2001

[10]

3 The statement of agreed facts detailed the alleged failures against the defendant in the s 15(1) matter in this way : It is alleged that on 14 December 1998 the Defendant, being an employer at the said site, failed to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Frank Remmington and Mr William Beattie, contrary to Section 15(1) of the Occupational Health & Safety Act 1983 (NSW), in that the Defendant failed to provide or maintain plant and systems of work that were safe and without risk to health. The Defendant failed to adopt a system of maintenance of equipment such as the air acetylene set used by Mr Beattie and Mr Remmington on 14 December 1998 so as to ensure that such equipment is free from defects prior to it being used by employees. The equipment provided to Mr Beattie and Mr Remmington for use on 14 December 1998 was defective. Further, the Defendant did not provide adequate safety precautions, designated procedures or other safe systems of work to be employed by Mr Remmington and Mr Beattie in performing the task required of them by the Defendant. Further, the Defendant failed to provide such information, instruction and training as may be necessary to ensure the health and safety at work of the Defendant's employees. Prior to the incident, the Defendant had provided no information, instruction and training to Mr Beattie or to Mr Remmington as to the maintenance and use of welding equipment and, in particular, provided no information regarding any pre-use checks for defects to be adopted by persons such as Mr Remmington and Mr Beattie. The alleged failures as to the s 16(1) matter were relevantly the same as those set out above, except, of course, with necessary references to safety risks occasioned to the patients as persons not in the employ of the defendant. Otherwise, as was conceded by the prosecutor's solicitor, Mr G Phillips , "there is no difference in terms of the facts or in terms of any relevant breaches by this defendant which would make the position in one matter different to the other".

[26]

9 In mitigation of penalty, counsel for the defendant, Mr A A Henskens, read an affidavit sworn on 14 June 2001 by Jules Potiki who was the Occupational Health and Safety Manager for the Royal Prince Alfred Hospital. Mr Potiki had a Bachelor of Engineering (Mining) and Master of Safety Science and had worked in the occupational health and safety field for over 13 years. He deposed that as a result of the present incident he now reported directly on a regular basis to the executive of the defendant on occupational health and safety issues. Mr Potiki's affidavit indicated that the Royal Prince Alfred Hospital was the largest hospital in the defendant's area and employed approximately 4,200 staff of whom most were engaged in the provision of direct clinical care; the Engineering Department had about 140 staff, including approximately 80 engaged in routine maintenance like the work of the two plumbers here. Mr Potiki referred to the subject incident and to the consequent investigation by the WorkCover Authority, including the issue by the prosecutor of a prohibition notice against use of the equipment concerned until two improvement notices had been complied with concerning the implementation of a routine programme of periodic inspection and maintenance for welding and other equipment used by tradesmen and the fitting of flashback arrestors to all cylinders - those notices were fully complied with by the due date. In terms of safety systems, Mr Potiki detailed the hospital's policies and procedures existing prior to and at the time of the subject incident with specific reference to consultation and communication, training, safe operating procedures, safety audits and inspections, manual handling and ergonomics, occupation hygiene, accident investigation and statistical analysis, and rehabilitation. As to the changes made following the incident on 14 December 1998, Mr Potiki deposed : 7.1 Following the accident the Engineering Services Department of RPA complied fully with the WorkCover prohibition and improvement notices.

[52]

18 In reaching this view, I have had in mind Mr Henskens' proposition that the ability or resources of a defendant to pay a particular penalty were relevant in the sentencing process. I agree: see Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at p 467 in par [82]. However, Mr Henskens then developed that proposition in order to minimise any penalty on the defendant with the following submission : In my submission that general principle is applicable here in the sense that the defendant is a nonprofit organisation. It is an organisation which has a charter to treat public patients. It is an organisation which by and large treats the less well off of our society, the more wealthy people have private insurance, go to private hospitals. There is now legislative tax matters which penalise the higher earners from not having private insurance so your Honour in my submission can take into account and would properly take into account the fact that any penalty is going to rest on a nonprofit organisation with a limited budget. This is necessarily going to have an effect on the customers of the defendant, that's the community at large. Section 6 of the Occupational Health and Safety Act is expressed so as to make the Crown bound by the statute, not only in right of New South Wales but also the Crown in all its other capacities. That section, in my view, and as Mr Phillips submitted, is applicable in the present case as the defendant is a manifestation of the Crown as incorporated under the Health Services Act . The question of the appropriate level of penalty to be imposed upon a Crown defendant was expressly raised in this respect by Mr Phillips' reliance upon the following passage from my judgment in WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 at pp 21-22 : I agree with the proposition that the liability of the Crown to fines for breaches of statutory obligations, such as the Occupational Health and Safety Act , represents the means to ensure a standard of public conduct at least equal to that which the Crown demands of its subjects and of society at large. I affirm those views. Mr Henskens' submission on this aspect, therefore, is rejected and I approach the sentencing of the defendant on an equivalent basis to that of any other defendant.

WorkCover Authority of New South Wales (Inspector Stewart) v Central Sydney Area Health Service

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