Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales - [2001] NSWIRComm 313 - NSWIRComm 2001 case summary — Zoe

NSWNSWIRComm

Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales

[2001] NSWIRComm 313

Industrial Relations Commission (NSW)|2001-07-01|Before: Walton J, Schmidt J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2001-07-01

Before

Walton J, Schmidt J

Source

Original judgment source is linked above.

Judgment (158 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 PROSECUTOR: Workcover Authority of New South Wales (Inspector Ankucic) PARTIES : DEFENDANT: Crown in the Right of the State of New South Wales (Department of Education and Training) FILE NUMBER: IRC 1937 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Occupational health and safety - Prosecution under s16(1) of the Occupational Health and Safety Act - Plea of guilty - Verdict entered - Accident in Industrial Arts classroom at High School - Student injured using circular saw in classroom - Saw unguarded - Unguarded machinery constituted pernicious and infamous risk to safety - Nature of risk and seriousness of relevant detriment to safety reflected in serious injuries - Evidence did not establish that guard had not been in place for substantial period - Risk of removal of guard not actually foreseen - A limited safety system in place - System of instruction and supervision of students inadequate - Inadequate training and instruction in use of machine - Risk of serious injury readily foreseeable - Inadequate training of teachers - Simple and straight forward remedial steps available - Guard not adequate in any event - Scope of the particulars of the charge - Special need for vigilance when young people using machinery - Need for general and specific deterrence - Serious offence - Subjective factors - Whether appropriate to consider prior convictions by other departments of the Crown - Penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(1) Occupational Health and Safety Act 2000 s121 Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Crown in Right of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Constructions Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 R v Olbrich (1999) 199 CLR 270 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 State Rail Authority (NSW) v WorkCover Authority of NSW (Inspector Dubois) (2000) 102 IR 218 Tuckley v Crown in Right of New South Wales (Department of Community Services) (1999) 96 IR 1 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Keenan) v Crown in Right of New South Wales (Department of Education and Training) (unreported, Schmidt J, Matter No IRC 598 and 601 of 1998, 6 December 1999) WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority (NSW) NSWIRComm 179 WorkCover Authority of NSW v Waugh (1995) 59 IR 89

[86]

25 The final issue arising from the evidence concerned the operation of the guard which had been provided for use on the circular saw involved in the accident. A report completed by Inspector McMartin was admitted concerning the operation of the type of circular saw involved in the accident. For the purpose of completing the report, the Inspector conducted an inspection of an identical circular saw and took a number of photographs demonstrating aspects of its operation. Inspector McMartin's report explained the appropriate use of the guard when operating the saw. The report stated as follows: GUARDING OF THE SAW BLADE 1. It is important for the operator to understand the rotation and action of the saw blade and the interaction of the timber being cut to appreciate the correct position of the hood guard and the riving knife. The saw blade rotates clockwise when looking at the blade from the left-hand side of the table therefore it tends to lift the timber being cut at the rear and push it down at the front. If the timber is not held down onto the table it will be lifted by the back of the blade to the top of the blade and propelled towards the front of the bench saw at the surface speed of the rotating saw blade. This often results in the operator or others being impaled. It is for this reason that the operator or others should never stand in line with the rotating saw blade. It is also the reason, in the case of the "Woodman TS-222" bench saw, that the Perspex is positioned on the left side of the hood guard so the operator views the blade from the left and out of line of the rotating saw blade. The emergency stop button should also be positioned on the left side of the machine, as is the case with the "Woodman TS-222" bench saw. 2. The hood guard should be lowered as close as possible to the timber being cut. The hood guard prevents the timber rising from the table to the top of the saw blade. The saw blade should also be adjusted to a height to allow the hood guard to cover the top of the saw blade, which will also prevent the timber rising to the top of the saw blade.

[139]

58 The Court was referred to two authorities which have considered the question of whether the prior convictions of other departments should be considered in relation to offences committed by a different emanation of the State of New South Wales. In WorkCover Authority of NSW (Inspector Tuckley) v Crown in Right of New South Wales (Department of Community Services) (1999) 96 IR 1, a submission was made by the defendant that in the sentencing process consideration of prior conviction should be limited to convictions in the area of the responsibility of the Department of Community Services. Hungerford J observed that the Crown was the proper employer of the injured worker rather than the particular department or statutory authority involved. His Honour continued (at 22 - 23): Having in mind the role played by prior convictions for the purposes of determining an appropriate penalty, I think it may be accepted that a most relevant consideration would be if no prior convictions existed in relation to the department concerned; but, in my view, that is not to say that prior convictions of the Crown generally are not relevant as well. I think they are. After all, the Crown is the employer and the fact it may organise the performance of its functions in a particular way, but still to retain responsibility as the employer rather than to establish a separate statutory corporation as the employer, cannot remove the Crown's overall responsibility and liability as such for the acts or omissions of those through whom it performs its functions. In the same way, and by direct analogy, an employer in private industry incorporated as a particular legal person may administratively so organise the performance of its functions so as to be done through departments or divisions of the corporate entity; but it is the corporate entity itself which is the employer and hence the legal person responsible for the conduct of the whole of its operations. For instance, I do not think it could be said that where a private corporation is, say, engaged in manufacturing at five plants throughout the State that if it had prior convictions as to two of those plants that that would not be relevant where it was convicted of an offence for the first time at another of its plants. And so, it seems to me, it must be for the Crown as an employer even though performing its very many functions of government through a departmental structure.

[144]

61 I consider that the Court is required to consider prior convictions of the Crown generally when assessing the appropriate penalty to be imposed for an offence under the Act. As was pointed out by Hungerford J in Tuckley, the Crown retains overall responsibility as an employer, notwithstanding the fact that it may structure its operations by dividing different areas of responsibility between departments or similar entities. Of course, the consideration of the prior record of a defendant is not a mechanical process which merely requires the Court to aggregate the number of convictions which have been recorded. The defendant correctly pointed out that, when considering the defendant's record, it is appropriate for the Court to take into account the size, nature and diversity of its operations. In Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455, for example, the Full Bench stated (at 456 - 457): We think that, having regard to the specific nature of the legislation, the past record upon which both the prosecution and defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential enquiry must remain the circumstances of the breach in question.