WorkCover v JVC Holdings trading as Get Fast Waste

[2014] NSWDC 378

District Court

New South Wales

Medium Neutral Citation:	WorkCover v JVC Holdings trading as Get Fast Waste [2014] NSWDC 378
Hearing dates:	04 November 2014
Date of orders:	04 November 2014
Decision date:	04 November 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Catchwords:	CRIMINAL LAW – prosecution – work health and safety SENTENCE – fine – company at the time of the injury had no formal occupational health and safety program in place – specific deterrence – appropriate penalty COSTS – prosecution costs
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) JVC Holdings trading as Get Fast Waste (Defendant)
Representation:	Counsel: P Ginters appeared for the Prosecutor M K Scott appeared for the Defendant Solicitor: WorkCover Legal Group John F. Morrissey &Co
File Number(s):	2013/184470
Publication restriction:	None

SENTENCE

1. On 1 July 2011 at Mortdale, Mr Basil Albaseri, an employee of JVC Holdings Pty Limited, fell from the top of a skip when he was attempting to spread canvas tarpaulin on the top of the skip. He fell nearly three metres and suffered serious and permanent injuries

2. The defendant, JVC Holdings Pty Limited, pleads guilty to a charge that it failed to comply with its duties pursuant to section 8(1) of the Occupational Health and Safety Act 2000 to ensure the health, safety and welfare of Mr Albaseri.

3. The accident could and should have been averted. The employer should have required Mr Albaseri to use a side ladder, or a portable work platform, on which he could stand while placing the tarpaulin. Alternatively it should have provided a tarpaulin which may have been hydraulically lifted up and placed across the bin. Further in the alternative,s the defendant could have provided telescopic poles, by which the tarpaulin could have been drawn across the skip bin.

4. The defendant is an operator of waste bins and at the time employed eight full-time staff and four casuals. It had no formal Occupational Health and Safety Program in place. There was no documentation nor risk statements addressing any part of the defendant’s operations.

5. Although the company had operated for seven years without any injury more serious than a sprained ankle that would appear to be as much a question of luck as anything else.

6. The gravity of the offence is reflected not only in the serious injury suffered by Mr Albaseri but in the simplicity with which the injury could and should have been avoided.

7. There is a need for general deterrence in an industry which employs machines and plant of considerable size.

8. There is a limited need for specific deterrence because the defendant has now devised and documented safe working procedures directed to every aspect of its operation.

9. Since the accident the defendant has employed a Mr Angelo Kouis as a traffic and safety coordinator in the yard and has published safe working procedures.

10. I accept that Mr Panetonio, the director and owner of the company, is a man of good character. I accept that the company, through Mr Panetonio, has expressed contrition and remorse. In all the circumstances I think an appropriate penalty is $50,000.

11. The defendant is entitled to a 20% reduction in this amount in consideration of its early plea and cooperation with the prosecutor.

12. The defendant is convicted and fined $40,000. I order that the prosecution have a moiety of the fine.

13. I order that the defendant pay the prosecution’s costs agreed at $15,000.

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Decision last updated: 17 February 2016