Citation: WorkCover Authority of NSW v Alameddine [2014] NSWDC 303
Court: District Court of NSW
Date: 30 October 2014
Judge(s): Curtis J
Background
The defendant was a project manager employed by a painting contractor, Robertson's Painting and Decorating Pty Limited, overseeing external painting works at a home unit building in Meadowbank. He arranged the hire of an elevated work platform (a boom lift) for the job, despite knowing the platform was unsuitable for sloping sites.
The defendant directed workers to operate the machine even though he knew none of them were trained or licensed to do so. He also failed to ensure they wore safety harnesses or to inform them that the machine would emit an audible alarm if its stability was at risk.
The boom lift toppled over while operating on a sloping site beyond its safe reach. One worker, Mr Osman, was thrown from the platform and died from his injuries.
Legal Issues
- Whether the defendant, as an employee acting in a project manager role, failed to take reasonable care for the health and safety of other persons, contrary to section 20 of the Occupational Health and Safety Act 2000
- What penalty was appropriate given the gravity of the offending
Decision
Issue 1: Liability
The court found all charged acts and omissions proved beyond reasonable doubt (at [7]). These included failing to identify safe locations for operating the boom lift, failing to conduct a risk assessment, failing to inform workers of the stability alarm, and failing to exercise reasonable supervision (at [7]).
The defendant's culpability was compounded by specific knowledge of the risks. He knew the platform was unsuitable for sloping sites, knew the workers were untrained, and was directly warned by one worker, Mr Konstantynyuk, that he was unlicensed, did not know how to operate the machine, and was uncomfortable doing so (at [3], [4], [8]).
Issue 2: Penalty
The maximum penalty for the offence was $3,300. The court assessed the offending as sitting at the gravest end of the spectrum, citing the need for specific and general deterrence and the need to denounce the defendant's conduct (at [9]).
No subjective factors were placed before the court that would justify any reduction from near the maximum. A fine of $3,000 was imposed (at [9]-[10]).
Orders Made
- The defendant is convicted and fined $3,000
- WorkCover Authority is directed to receive a moiety (half) of the fine
- The defendant is to pay the prosecution's costs as agreed or assessed
Key Takeaways
- Under section 20 of the Occupational Health and Safety Act 2000, an employee who exercises supervisory or managerial responsibility over other workers can be held personally liable for failing to take reasonable care for their health and safety (at [1], [7]).
- The District Court treated a fatality resulting from multiple known and foreseeable safety failures as placing the offending at the gravest end of the penalty spectrum, warranting a fine close to the statutory maximum (at [9]).
- Prior, direct warnings from workers about their lack of training and discomfort with equipment were treated as aggravating the defendant's culpability rather than transferring responsibility away from him (at [8]).
- Absence of any subjective mitigating factors before the court meant no reduction from the near-maximum fine was warranted (at [9]).
- Employment status as a common law employee does not preclude liability under the Act; the court found the defendant's role, exclusive engagement, hourly pay, and subordination to directions confirmed his employee status (at [2]).
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated