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Inspector Low v Watt t/as Aaron Watt Plumbing [2011] NSWIRComm 99 (27 July 2011)
Last Updated: 28 July 2011
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Industrial Relations Commission
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Case Title:
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Inspector Low v Watt t/as Aaron Watt Plumbing |
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Before:
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Decision:
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(1) The defendant is found guilty of the offence
charged under s 8(1) of the Occupational Health and Safety Act 2000. (2) The
defendant is fined an amount of $25,000 with a moiety to the prosecutor. (3)
The defendant shall pay the costs of the prosecutor as agreed or assessed.
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Parties:
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Inspector Ian Low (Prosecutor) Aaron James Watt
trading as Aaron Watt Plumbing (Defendant) |
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Representation
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Mr M Cahill of counsel (Prosecutor) Mr J Pearce
of counsel (Defendant) |
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- Solicitors:
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WorkCover Authority of New South Wales
(Prosecutor) Hills Solicitors (Defendant) |
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Judgment
- The
defendant in this matter, Aaron James Watt trading as Aaron Watt Plumbing, has
pleaded guilty to an offence under s 8(1) of the Occupational Health and
Safety Act 2000 ("the Act"). The offence arose out of an incident that
occurred on 14 October 2008 in domestic premises at 27 Buffier Crescent,
Rutherford.
On that day, Brendan Allwood, an apprentice plumber employed by the
defendant, suffered a fatal electric shock whilst assisting the
defendant to
perform plumbing work.
- Inspector
Ian Low of the WorkCover Authority of New South Wales prosecuted the defendant.
Inspector Low had alleged that the risk
to which Mr Allwood was exposed was a
risk of electric shock whilst performing plumbing works at the Rutherford
premises in proximity
to an electrical circuit that had not been isolated from
the electrical power supply to the premises and proven de-energised. It
was
further alleged the defendant failed to provide:
(1) a system of work in relation to the plumbing works to be performed at the
premises in proximity to a live electrical circuit which
was safe and without
risk to health;
(2) such information and instruction to his employee as was necessary to
ensure the employee's health and safety whilst plumbing works
were being
undertaken in proximity to a live electrical circuit at the premises; and
(3) such supervision to his employee as was necessary to ensure his
employee's health and safety whilst plumbing works were being
undertaken in
proximity to a live electrical circuit at the premises.
- The
application by the Inspector for an order that the defendant appear before the
Court to answer the charge also particularised
the measures the defendant should
have taken to ensure Mr Allwood's safety.
- This
judgment deals with the sentencing of the defendant.
Agreed statement of facts
- The
following facts were agreed:
(a) The defendant carried on business as a plumber, drainer and gasfitter
providing plumbing services in the Rutherford district in
the State of New South
Wales.
(b) At all material times the defendant employed Mr Allwood as an apprentice
plumber.
(c) The defendant was retained to carry out an inspection of and repair work
to a leaking water pipe at the Rutherford premises, which
was a domestic house.
(d) The occupier of the premises, Mr Millett, showed the defendant where the
water was leaking from a pipe located under the bathroom
and toilet area of the
subject premises. The defendant inspected the area beneath the bathroom and
toilet area of the house.
(e) The defendant arranged for an extension power lead to be plugged into a
power point in the bathroom of the premises before feeding
the extension cord
out through the bathroom window to the area adjacent to the leaking water pipe.
(f) The defendant arranged for the water supply to be shut off.
(g) The defendant determined to repair the leak by removing and replacing a
length of the water pipe. The pipe to be cut was a galvanised
pipe approximately
25 mm in diameter. At the point where it was to be cut, it extended vertically
up a wall and was affixed to the
inside edge of a timber bearer by retaining
saddles. A second existing copper hot water pipe was also in situ along the
bearer.
(h) A three core (two core and one earth) electrical cable was also affixed
to the bearer by retaining saddles.
(i) The defendant attempted to cut the pipe with a hacksaw. However, he was
unsuccessful due to the proximity of other pipes.
(j) The defendant then exited from under the house, selected an electric
grinder from his tools and plugged the electric grinder into
the extension lead.
(k) The defendant used the angle grinder to cut the pipe.
(l) Mr Allwood was also engaged in cutting the pipe with the angle grinder.
(m) Mr Millett then saw Mr Allwood come out from under the house, bringing
the electric grinder with him.
(n) As Mr Allwood was observed coming out from under the house, Mr Millett
also heard a groaning noise coming from under the house
in the area where the
defendant was working.
(o) Mr Millett saw Mr Allwood go straight back under the house into the area
where the defendant was working. Mr Millett then ducked
down to see what was
happening and saw Mr Allwood grab hold of the defendant. Mr Millett then saw Mr
Allwood move forward on top
of the defendant like Mr Allwood was being pulled
onto the defendant. Mr Allwood was then lying on the defendant's lap and legs.
Mr Millett heard further sounds consistent with groans coming from the area.
(p) Mr Millett immediately thought that the defendant and Mr Allwood were
being affected by electricity. He disconnected the power
and called for
assistance.
(q) Mr Lawrence, a Senior Installation Inspector, employed by Energy
Australia attended at the premises.
(r) Upon his arrival at the premises, Mr Lawrence ... carried out an
inspection of the area in which the incident had occurred. In
the course of his
inspection in the area in which the incident had occurred, Mr Lawrence made
observations and findings which led
him to conclude that a rough, raised section
of the galvanised tee-piece attached to a section of galvanised water pipe (i.e.
the
section of pipe which Mr Millet saw the defendant manipulating at the time
of the incident) had pierced the thermo-plastic sheath,
exposing a section of
copper wire, in the adjacent 6mm 2 "twin and earth" TPS (thermo plastic
sheathed) electrical cable. The TPS
cable was the garage sub-mains electrical
supply cable from the meter box attached to the house to the double garage also
located
on the premises. The portion of exposed copper wire, within the TPS
cable, was found by Mr Lawrence to be the active conductor of
the electrical
sub-mains circuit supplying electricity to the garage such that contact between
the raised, rough edge of the tee-piece
would have caused the galvanised pipe
section to become "live".
(s) Mr Allwood died from electrocution.
- The
agreed facts indicated that the risk of electrical shock associated with
maintenance work on metallic plumbing services (i.e.
pipe work) due to the
proximity of electrical services (i.e. electrical cables) was well recognised
prior to the incident. Reference
was made to the Australian Standard
3500.1.2:1998 which provided that:
5.3.1 Electrical Cables and Gaspipes
5.3.1.1. Water Services Above and Below-Ground Water Services shall be
installed so that -
(a) no potential safety hazard is created when in close proximity to other
services;
(b) access for maintenance and potential branch insertions is not impaired by
other services.
- The
Australian Standard 3500.1:2003 provides, in Section 5 Installation of Cold
Water Services, in the subsection entitled "5.3 Proximity to Other Services" as
follows:
5.3.1 General
Where electrical conduits, wires, cable or consumer gaspipes, drains and
other services are in existence, pipes shall be installed
in accordance with the
requirements of Clauses 5.3.2 to 5.3.10.
5.3.2 Separation from Above-Ground Electrical Conduit, Wire, Cable or
Consumer Gaspipes
A separation of at least 25mm shall be maintained between any above-ground
water service and any of the following services:
Electrical conduit.
Electrical wire or cable.
Consumer gaspipes.
- It
was further agreed that:
Having regard to the proximity the galvanised pipe to the TPS electrical
cable providing electricity to the garage of the premises,
the defendant should
have isolated the electricity supply from the premises and proved the electrical
installation dead (i.e. de-energised)
before commencing the subject plumbing. Or
alternatively, isolated the electrical supply at the premises from the sub-main
circuit
to the garage and proved the TPS electrical cable dead (i.e.
de-energised) before commencing the plumbing work.
The Defendant did not have any safe work procedures or written risk
assessments to assist him and Mr Allwood to consider and identify
the presence
of a risk of electric shock whilst performing plumbing works at the premises in
proximity to an electrical circuit that
had not been isolated from the
electrical power supply to the premises and proven de-energised.
The Defendant did not provide any instruction to Mr Allwood that no work
should be commenced on the leaking pipe work at the premises,
due to the
proximity of the TPS electrical cable of the garage electrical sub-main circuit,
until either the electrical installation
at the premises had been isolated and
proven de-energised or the garage electrical sub-main circuit had been isolated
and proven
de-energised.
- It
was agreed the defendant has no prior convictions.
Other evidence
- Mr
M Cahill of counsel for the prosecutor also tendered into evidence a factual
inspection report prepared by Inspector Graeme Aldred,
a series of photographs
showing the premises where the incident occurred and the scene of the incident,
a report into the incident
by Jim Lawson, an electrical engineer with WorkCover,
and a report by Cameron James Gleeson, a plumbing consultant and teacher.
- In
his report Mr Lawson stated:
When the plumber was manoeuvring the piece of galvanised steel pipe away from
the pipe supporting saddle on the timber bearer the
rough edges of the
galvanised tee came into contact with the adjacent TPS cable. This manoeuvring
action by the plumber caused a
rough edge of the galvanised tee piece to pierce
the outer sheath and the internal red coloured insulation of the active
conductor
of the TPS cable ... The contact of the edge of the galvanised tee
piece with the TPS cable active conductor caused the galvanised
steel pipe that
the plumber was manoeuvring to become energised at approximately 240 volts with
respect to earth. This would have
caused the plumber to receive an electric
shock as he would have been in contact with the ground under the house via his
work clothes
and work boots.
It would appear that the apprentice plumber Brendan Allwood was electrocuted
when he attempted to pull Aaron Watt away from the galvanised
steel pipe that
Aaron Watt was manoeuvring.
... The safest way to have carried out this plumbing work, because of the
close proximity to the TPS cable, would have been to turn
off the power to all
electrical circuits at the main switchboard ...
- In
answering a series of questions put to him by WorkCover, Mr Gleeson stated that
if AS/NZ 3500.1:2003 clause 5.2 had been observed
the damage to the TPS cable
could have been foreseen and avoided. That provision requires that the power to
the property be switched
off before work begins.
- Mr
J Pearce of counsel for the defendant tendered into evidence an affidavit of the
defendant and a report by Dr W G Warren, clinical
and forensic psychologist. The
defendant was required for cross-examination.
- Mr
Watt is married and has three young children. He is 34 years of age. His
affidavit described his plumbing business and the fact
that he had not worked as
a plumber since 14 October 2008. The business was de-listed on 30 June 2010. The
affidavit also identified
the defendant's assets, which were:
a house in which the defendant is the joint registered owner. The house is
encumbered by a mortgage and $268,000 is owed;
a vehicle valued at $12,000, unencumbered;
a second vehicle jointly owned valued at approximately $15,000, unencumbered;
a personal loan in the sum of $16,178.31 as at 31 December 2010;
a credit card debt of $4,100.
The defendant's spouse works on a
casual basis earning approximately $350 per week.
- In
cross-examination the defendant revealed he was now employed on a full time
basis (subject to completing a probationary period
in September 2011) as a truck
driver earning approximately $90,000 per annum after tax. The defendant is
paying about $400 per week
on his mortgage, $110 per week on his personal loan
and about $1,200 per week on household expenses.
- In
his affidavit the defendant described his relationship with Mr Allwood, which
was a close relationship. Mr Allwood was a family
friend and he and the
defendant had played football together. The defendant described the incident on
14 October 2008. He accepted
in cross-examination that he knew using the angle
grinder created a risk of cutting the cable and he had instructed Mr Allwood to
be careful in that regard, but he gave him no instruction to place a mechanical
barrier between the galvanised pipe and the electrical
cable. The defendant also
accepted that it had been open to him to turn off the power including at the
main switchboard. The defendant
agreed that had the power been disconnected the
risk associated with the cable would have been entirely avoided.
- Mr
Watt said that he had spent three days in hospital following the incident; that
he blamed himself for Mr Allwood's death and felt
very guilty. He had suffered
from depression and anxiety and had been unable to work for three months.
- Dr
Warren carried out a psychological assessment of the defendant. His report
indicated that the defendant had experienced a very
significant trauma but his
psychological state since the incident had improved. The report stated:
Assessment indicated a man who, pre-accident, was functioning optimally,
psychologically, and who reacted to the tragic events with
common post-trauma
symptoms. These symptoms likely met formal criteria for a diagnosis of
Adjustment Disorder with Mixed Anxiety
and Depressed Mood closer to the
accident. At the time of the present assessment those symptoms had subsided and
he had moved closer
to his pre-accident optimum psychological functioning,
except that he is still experiencing difficulties. These last difficulties
summarise to him not having been able to resume a previous comfortable level of
social and interpersonal interactions, as well as
coming to terms in his
intra-personal life (inner thoughts and pre-occupations) with continuing
feelings of guilt and felt negative
appraisal by others. Further, he continues
to be unable to work at his Trade and would likely need significant counselling
a this
point in time to be able to do so.... In essence, pre-accident I see a
psychologically well-functioning man who experienced significant
trauma and
reacted with common post-trauma symptoms. Those symptoms at one point likely met
formal criteria for a diagnosis, some
of those symptoms continuing to the
present time and inviting treatment through focused counselling.
Consideration
Maximum penalty
- The
maximum penalty that the Court may impose in this case is $55,000: see s 12(d)
of the Act.
Offending conduct
- The
defendant has pleaded guilty to what I regard as a serious contravention of s
8(1) of the Act. The contravention involved a failure to ensure that an
employee, Mr Allwood, was not exposed to a risk of electric shock
whilst
performing plumbing work at domestic premises. The failures on the part of the
defendant that led to Mr Allwood being exposed,
were a failure to provide a safe
system of work, a failure to provide necessary information and instruction, and
a failure to provide
the necessary supervision to Mr Allwood.
- As
a consequence of these failures and the exposure to the risk of electric shock,
Mr Allwood died. Mr Allwood's death was a manifestation
of the seriousness of
the risk. Although the damage or injury caused by the breach does not, of
itself, dictate the seriousness of
the offence or the penalty, a breach where
there was every prospect of serious consequences may be assessed on a different
basis
to a breach unlikely to have such consequences. In such a case, the
occurrence of death or serious injury may manifest the degree
of seriousness of
the relevant risk: Cahill v State of New South Wales (Department of Community
Services) (No 4) [2008] NSWIRComm 201; (2008) 182 IR 231 at [35].
Foreseeability of the risk
- It
will be a serious offence where there is an obvious or foreseeable risk to
safety against which appropriate measures were not taken,
even though such
measures were available and feasible: Lawrenson Diecasting Pty Ltd v
WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm
343; (1999) 90 IR 464 at 476.
- The
risk was well known in the industry: see The Australian Standard 3500.1.2:1998
at 5.3 and the Australian Standard 3500.1:2003
at 5.3. Further, although the
defendant did not foresee the exact manner in which the risk ultimately
manifested itself, as the prosecutor
submitted, the risk posed by the proximity
of the cable to the water pipe was recognised by the defendant because he
attempted to
isolate the disc of the angle grinder from the cable while the pipe
was being cut.
Remedial steps
- The
existence of simple and straightforward remedial steps that could have been
taken by the defendant to avoid the risk to safety
are relevant in assessing the
seriousness of the offence: Department of Mineral Resources of NSW (McKensey)
v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 at 27;
WorkCover Authority of NSW v ACI Operations Pty Ltd [1994] NSWIRComm 167;
[1994] NSWIRC 11; Inspector Elizabeth Benbow v Planada Holdings Pty Ltd
[2001] NSWIRComm 275.
- The
defendant agreed that had the power been disconnected the risk associated with
the cable would have been entirely avoided. That
was a step - an obvious and
simple step - open to the defendant to have taken. If he needed a power source
for his grinder he could
either have supplied his own or plugged in next door.
But whatever difficulty he might have encountered in finding an alternative
to
leaving the power on in order to use the grinder, it would have been infinitely
safer, in the circumstances, to adopt the alternative.
Deterrence
- General
and specific deterrence are matters to be taken into account in sentencing under
the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales
[2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] - [80]; Cahill v DOCS
(No 4) at [43].
- The
incident was a tragedy; a young life lost in such mundane and unthreatening
circumstances as the local plumber being called to
fix a leaking pipe. Like so
many workplace incidents resulting in death it happened in a situation where it
could have been avoided
by a moment's reflection on what was required to ensure
safety and in this case by the simple act of throwing a switch to the "off"
position on the switchboard of the premises.
- Death
by electrocution in the workplace is not uncommon. In the past 10 years there
have been 18 prosecutions in this Court where
electricity in workplaces has
posed a risk to safety. In most cases a death occurred.
- There
is a strong case, in my opinion, for including a significant element of general
deterrence in the penalty imposed. I take a
different view about specific
deterrence. The defendant no longer works as a plumber and, instead, drives a
truck. The risk of re-offending
is low. It is, of course, possible that he will
return to his trade; he is still a young man. I have, therefore, included a
small
element in the penalty for specific deterrence.
Subjective factors
- The
prosecutor accepted that the defendant entered a guilty plea at an early stage.
He is, therefore, entitled to have that taken
into account in mitigation of any
sentence imposed: see s 21A(3)(k) of the Crimes (Sentencing Procedure) Act
1999. The prosecutor also accepted there were no factors that would
disentitle the defendant to a discount in the order of 25 per cent.
- I
am able to accept that the defendant is genuinely remorseful. Mr Watt was a
"mate" of Mr Allwood. In blaming himself for Mr Allwood's
death the defendant
has taken responsibility for his actions and has clearly acknowledged what he
has done. His early plea of guilty
may also be taken as an indication of his
contrition.
- The
defendant is entitled to have his prior good record taken into account as a
mitigating factor and I note that it is common ground
that the defendant
cooperated with the WorkCover Authority in its investigation of the incident.
- I
also take into account that Mr Watt was injured, that he suffered trauma as a
consequence of the incident and, psychologically speaking,
is still coming to
terms with what occurred.
- Mr
Pearce indicated that he had been instructed to seek an application of s 10 of
the Crimes (Sentencing Procedure) Act and in doing so provided a helpful
summary of the relevant case law in that respect. It is unnecessary to refer to
that case law in
any detail except to say, as Mr Pearce properly conceded, it
has been held at appellate level that s 10 will only be applied in rare
circumstances in relation to an offence under the Occupational Health and
Safety Act : see WorkCover Authority of NSW v Profab Industries Pty Ltd
[2000] NSWIRComm 142; (2000) 100 IR 64 at [23]- [26]; Inspector Downie v
Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 at
[55]- [57]; Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61;
(2005) 147 IR 117 at [131].
- The
offence in this case is an objectively serious offence that should attract a
penalty towards the high end of the range. It is
not an offence that would
attract s 10.
- The
defendant did not contend he had no capacity to pay any fine imposed on him.
Counsel did, however, request the Court to have regard
to the defendant's
financial circumstances, outlined earlier in this judgment because the defendant
had a " severely reduced capacity
to pay a fine": see Inspector Hopkins v
Wherrit t/as M J Wherrit Concrete Pumping Services [2002] NSWIRComm 16;
Inspector Nikolovski v McCrudden (No 2) [2011] NSWIRComm 73 at [37]- [39].
Counsel also requested the Court to have regard to costs in determining an
appropriate penalty: Morrison v Centennial Coal Company Ltd [2010]
NSWIRComm 4 at [92]- [98]; McCrudden at [37]-[39].
- In
Wherrit, the evidence demonstrated that the defendant was on sickness
benefits and was performing very few duties associated with the business.
In
recent years, he had made relatively small amounts of money from the business as
income and that the business was losing money.
Haylen J observed at [59] that:
It is clear that Mr Wherrit will pay the penalty imposed from his own meagre
and stretched financial resources.
- It
does not seem to me that the defendant in the present case is in the same
financially straitened circumstances as Mr Wherrit. Moreover,
as Wright J,
President observed in WorkCover Authority of New South Wales (Inspector
Benbow) v Converquip Pty Ltd [2001] NSWIRComm 85; (2001) 106 IR 258, a
consideration of the means of the defendant with a conclusion that a heavy fine
may be a burden on the defendant and its financial
resources, does not
necessarily preclude the imposition of a heavy penalty.
- In
Centennial Coal I stated at [96]-[97]:
[96] The defendants did not oppose an order that they pay the prosecutor's
costs as agreed or assessed. However, it was submitted
that in considering the
appropriate penalties the Court should take into account the fact that a
defendants will have to pay the
prosecutor's costs. It was submitted, and it
would appear to be right, that costs are to be regarded as part of the
defendant's punishment:
Environment Protection Authority v Barnes [2006]
NSWCCA 246 at [78], [88]; Environment Protection Authority v Hardt [2007]
NSWLEC 284 at [66].
[97] I have not been apprised of the amount of legal costs the defendants
will be liable to pay but it is a reasonable expectation
they will be
substantial. In arriving at the penalties I have taken this into account.
- Whether
or not the costs are substantial in this case - but I presume they would not be
insubstantial - I take the same approach as
that in Centennial Coal in
that in arriving at penalty I have taken costs into account.
- I
accept the defendant's plea of guilty and convict the defendant of the charge.
- I
am conscious of the fact that I am dealing with a relatively young man of good
character with a young family who made a tragic mistake.
The defendant is truly
remorseful, entered an early guilty plea and carries with him a sense of guilt
over what occurred to his mate.
The defendant is not a wealthy individual yet he
is not financially stretched. The offence was objectively serious and general
deterrence
is a significant factor to be taken into account in fixing any
penalty.
- I
consider an appropriate penalty in this case, having regard to all of the
relevant considerations, is $25,000.
Victim Impact Statements
- By
reason of s 27(2A) of the Crimes (Sentencing Procedure) Act , Division 2
of Part 3 of that Act dealing with victim impact statements only applies to an
offence being dealt with by the Industrial Relations Commission
if:
(a) the offence is an offence against Division 1 of Part 2 of the
Occupational Health and Safety Act 2000 or Division 1 of Part 2 of the
Rail Safety Act 2008,and
(b) the offence results in the death of, or actual physical bodily harm to,
any person.
That provision is satisfied in relation to the present
proceedings.
- If
it considers it appropriate to do so, a court may receive and consider a victim
impact statement at any time after it convicts,
but before it sentences, an
offender: s 28(1) of the Crimes (Sentencing Procedure) Act . Section
28(3) provides that if the primary victim has died as a direct result of the
offence, a court must receive a victim impact statement given
by a family victim
and acknowledge its receipt, and may make any comment on it that the court
considers appropriate. Section 28(4)(b) provides that the court must not
consider a victim impact statement given by a family victim in connection with
the determination
of the punishment for the offence unless it considers that it
is appropriate to do so.
- The
Court has received victim impact statements from Joanne Marie Allwood, mother of
Mr Allwood and Loryn Grace Allwood, Mr Allwood's
sister. I acknowledge receipt
of those statements.
- Joanne
Allwood described the impact of the death of her son on her mental health. She
has suffered clinical depression and required
medication to cope. She is seeing
a counsellor. Ms Joanne Allwood has mood swings, she is unable to sleep and
found herself consuming
more alcohol that usual in trying to cope. She has
difficulty coping in social situations.
- Joanne
Allwood said "I don't let people close as I am afraid of them dying (she lost
her husband three years previously). My relationships
have suffered because
people are trying to be too sensitive of my needs and don't include me in the
things they once did".
- Ms
Allwood had been training for a Certificate IV in aged care nursing, but said
she could not train effectively "on all the aspects
of death and dying as it was
too emotional for me". The inability to train and obtain the certificate had "a
large financial impact"
on Ms Allwood and she was unable to continue working. Ms
Allwood said she felt cheated by the loss of her son, that "I won't hold
his
children in my arms, and am sorry that he won't pass on his father's name".
- Ms
Loryn Allwood described what occurred on being called to the hospital on the day
of the incident and on seeing the body of her
brother. It was obviously a most
traumatic experience for her. She said she felt as though "a part of me died
that day too".
- Since
then Ms Loryn Allwood said her life has never been the same. Initially she cried
all day, could not sleep or eat and was in
denial about what had happened. She
was angry, constantly tired and tried drinking to cope. Ms Allwood said she was
depressed, did
not want to leave the house and when she did get to sleep,
experienced nightmares and woke up hysterical. Ms Allwood said she was
close to
her brother and he was protective of her. She felt lonely and worried for her
mother.
- Ms
Allwood was an assistant in nursing in an aged care home, but found she could no
longer cope with that work. This caused a finacial
burden on her. Ms Allwood now
feels anxious, feels a great fear of death and fears simple tasks such as
plugging in an electrical
appliance.
- Ms
Allwood commenced a new job involving workplace safety in the mining industry,
but she later left that employment on the advice
of her doctor because it
created too much emotional stress.
- Ms
Allwood said:
2 and a half years later I still feel pain and heart ache everyday from
losing my brother. I still cry myself to sleep some nights
knowing that I am
never going to hug him again and that he's never going to walk me down the aisle
like he always promised to do.
His death has not only impacted me but it has
impacted the whole community and I still talk to people on a daily basis about
how
much we miss Brendan and how life will never be the same without someone who
is loved so much, by so many people. I don't think I
will ever fully recover
from this. I am just learning how to live with the circumstances.
- There
was no objection to the victim impact statements and no call to cross-examine
either statement maker.
- I
am unable to take into account the effect of Mr Allwood's death on his mother
and sister in determining penalty: see discussion
in Inspector Lancaster v M
L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80]- [90].
- I
am effectively limited to acknowledging in this judgment the impact on them of
his death. I have recorded what the mother and sister
have said in their
statements in some detail in order that the community, but particularly
employers, are exposed to the feelings
of grief and trauma families experience
where a loved one loses his or her life at work and the ruinous effect on their
own lives.
The Court extends its deepest sympathy to Mr Allwood's mother and
sister for their loss.
Orders
- The
Court makes the following orders:
(1) The defendant is found guilty of the offence charged under s 8(1) of the
Occupational Health and Safety Act 2000.
(2) The defendant is fined an amount of $25,000 with a moiety to the
prosecutor.
(3) The defendant shall pay the costs of the prosecutor as agreed or
assessed.
**********
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