CITATION: Gelding v Gibbo’s Tyres Pty Ltd [2018] NTLC 012
PARTIES:Stephen GELDING
v
GIBBO’s TYRES Pty Ltd
TITLE OF COURT: Local Court
JURISDICTION: Criminal
FILE NO:21719670
DELIVERED ON: 30 April 2018
DELIVERED AT: Darwin
HEARING DATE(s): 5 October 2017 & 19 March 2018
JUDGMENT OF: Greg Macdonald
CATCHWORDS:
Work Health and Safety (National Uniform Legislation) Act – sections 32 and 38 – Sentencing.
REPRESENTATION:
Counsel:
Complainant: Mr Mark Thomas
Defendant:Mr Michael Whelan
Solicitors:
Complainant: Direct brief
Defendant:Michael Whelan & Associates
Judgment category classification: A
Judgment ID number: [2018] NTLC 012
Number of paragraphs: 29
IN THE LOCAL COURT
AT KATHERINE IN THE NORTHERN
TERRITORY OF AUSTRALIANo. 21719670
BETWEEN:
Stephen GELDING
Complainant
AND:
GIBBO’s TYRES Pty Ltd
Defendant
REASONS FOR JUDGMENT
(Delivered 27 April 2018)
Judge Macdonald:
Background
On 19 March 2018 I gave extempore reasons on sentence in lieu of written decision, due to disruptions through cyclone Marcus, with reasons to be published. These are those reasons.
On 5 October 2017 Defendant Gibbo’s Tyres Proprietary Limited pleaded guilty to contravening sections 32 and 38 the Northern Territory’s Work Health and Safety (National Uniform Legislation) Act (the Act). Namely, failure to comply with a “health and safety duty” and failure to immediately notify the regulator after becoming aware of a “notifiable incident”, respectively.
The two counts to which the defendant pleaded guilty arose out of a tragic and fatal incident which occurred at the defendant’s business premises in Katherine, Stuart Highway Tyres, on 19 November 2015.
It is uncontroversial that the defendant was “a person conducting a business or undertaking” (PCBU) within the meaning of the Act. Section 30 of the Act defines “health and safety duty”, incorporating the extensive “primary duty of care” imposed on PCBUs by s 19 of the Act.
The essence of the contraventions alleged were, firstly, that the defendant as a PCBU failed to comply with a health and safety duty owed to “other persons” in the conduct of its business or undertaking, in contravention of s 32 of the Act. Second, that the defendant failed to ensure that the Regulator, being the Work Health Authority, was notified immediately following the incident of 19 November 2015, in contravention of s 38 of the Act.
The Complaint filed 13 April 2017 by the Regulator[1] set out sufficient particulars, consistent with the requirements of Kirk & Anor v Industrial Court of NSW & Anor (2010) 239 CLR 531.
Facts and Evidence
Agreed facts were put to the court for the purpose of the plea, which became exhibit P1. Essentially, the risk which ultimately materialised in tragic consequences for a two-year-old child was eight tyres leaning at an angle against an exterior rear wall of the workshop shed. Due to the ‘drive-through’ configuration of the premises, together with an absence of demarcation or barriers between the workspace and customer service area, there was no effective prevention of customers and others from the work area.[2] The…
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- Case
- [2018] NTLC 12
- Decision Date
CaseChat Overview and Summary
The court carefully examined the statutory framework and the obligations of the defendant under section 19 of the Act, which imposes a duty of care on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers and other persons. The court considered the specific breaches alleged in the complaint, which included failure to provide adequate barriers between the workspace and customer service area, thereby exposing the public, including children, to potential hazards. The court assessed whether the defendant had failed to eliminate or minimize the risks arising from work or specified types of substances or plant, as required by section 19(3) of the Act. It was crucial to determine what was reasonably practicable, taking into account the six criteria prescribed by section 18 of the Act.
After thorough deliberation, the court found that Gibbo's Tyres Pty Ltd had indeed breached its duty of care under section 32 of the Act by failing to ensure the safety of "other persons" on its premises. The court held that the placement of the tyres against the exterior wall without adequate barriers was a significant risk that could reasonably have been mitigated. The defendant's financial position, as evidenced by the financial statements tendered, did not absolve it from its legal obligations under the Act. Consequently, the court ordered the defendant to pay a penalty of $500,000 for the breaches identified. This decision underscores the importance of adhering to health and safety regulations to protect all individuals, including the public, from preventable harm.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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