Bradley Cummins v RAR Cranes Pty Ltd - [2022] ACTIC 1

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bradley Cummins v RAR Cranes Pty Ltd
Citation:	[2022] ACTIC 1
Hearing Date(s):	24 January 2022
DecisionDate:	25 March 2022
Before:	Chief Industrial Magistrate Walker
Decision:	See [64] – [67]
Catchwords:	INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Sentence – failing to comply with a health and safety duty – exposure to risk of death or serious injury or illness – financial capacity of corporation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) Work, Health and Safety Act 2011 (ACT) Magistrates Court Act 1930 (ACT) Magistrates Court Regulation 2009 (ACT)
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; 93 NSWLR 338 Capral Aluminium Ltd v Workcover Authority of NSW [2000] NSWIR Comm 71; 49 NSWLR 610 Dixon v R [2020] NSWCCA 123 Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 642 Murray v IA [2020] ACTSC 288 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for NSW v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82; 35 VR 399 R v Dib [2003] NSWCCA 117 R v Pham [2015] HCA 39; 325 ALR 400 R v UG [2018] ACTCA 64; 281 A Crim R 291 R v Watts [2020] ACTSC 91 Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; 36 WAR 492 SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143 SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614 SafeWork NSW v Stephen Craig Thompson [2021] NSWDC 689 Saipani v R ACTCA [2021] 5; 288 A Crim R 191 WorkCover Authority (NSW) v Atco Control Pty Limited (1992) 82 IR 80
Texts Cited:	Australian Law Reform Commission, Final Report on Corporate Criminal Responsibility, April 2020
Parties:	Bradley Cummins, WorkSafe ACT (Informant) RAR Cranes Pty Ltd
Representation:	Counsel Dr K Weston-Scheuber (Informant) Mr Jordan QC (Offender) Ms S Janackovic (Informant) Ms Epstein (Offender)
Solicitors ACT Director of Public Prosecutions (Informant) Clyde & Co (Offender)
File Number(s):	CC 40516 of 2018

CHIEF INDUSTRIAL MAGISTRATE WALKER:

Background

The offender, RAR Cranes Proprietary Limited (‘RAR Cranes’), pleaded guilty on 14 October 2021 to one count of failing to comply with a health and safety duty, a category two offence pursuant to section 32 of the Work, Health and Safety Act 2011 (ACT) (‘WHS Act’).

The maximum penalty for this offence for a body corporate is a fine of up to $1,500,000.

For the purpose of sentencing, I had the following available to me:

(a) an agreed statement of facts dated 26 November 2021;

(b) defence written submissions dated 20 December 2021;

(c) the affidavit of Jeffrey Rumble, Director of RAR Cranes, sworn on 16 December 2021 (as redacted);

(d) prosecution written submissions dated 19 January 2022;

(e) defence written submissions in reply dated 21…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] ACTIC 1
Decision Date: 25 March 2022

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia presided over a case between Bradley Cummins and RAR Cranes Pty Ltd, where the primary issue was whether RAR Cranes Pty Ltd had failed to comply with a health and safety duty under industrial law, resulting in Mr. Cummins being exposed to the risk of death, serious injury, or illness. The dispute centred on an incident where Mr. Cummins suffered injuries due to alleged safety breaches by the respondent company. The court was tasked with determining whether the respondent had adequately discharged its duty of care and whether the penalties imposed were commensurate with the company's financial circumstances.

The court examined the specific legal issues surrounding the adequacy of the health and safety measures implemented by RAR Cranes Pty Ltd and whether these measures sufficiently protected Mr. Cummins. Additionally, the court had to assess whether the penalties levied on the corporation were appropriate, taking into account its financial capacity. The decision hinged on whether the company's compliance with safety regulations was satisfactory and whether the sanctions imposed reflected the gravity of the safety breaches and the risk to employees' health and safety.

In its reasoning, the court concluded that RAR Cranes Pty Ltd had indeed failed to comply with its health and safety obligations, leading to Mr. Cummins' injuries. The court found that the company had not implemented adequate safety measures, thereby exposing Mr. Cummins to significant risks. The penalties initially imposed were deemed insufficient given the company's financial capacity. Consequently, the court adjusted the penalties to better align with the severity of the breaches and the financial standing of the corporation. The final ruling mandated the corporation to take corrective actions to ensure compliance with safety regulations and imposed a revised penalty that was deemed more appropriate under the circumstances.

Orders