Citation: WorkCover Authority of New South Wales v El-Hayek [2014] NSWDC 362
Court: District Court of New South Wales
Date: 1 August 2014
Judge: Kearns DCJ
Background
The defendant was an owner-builder overseeing the construction of a duplex at a residential property in Merrylands. He had no prior building experience or training and undertook only a brief owner-builder course before proceeding with the project, contracting out various trades to carry out the work.
A 16-year-old apprentice plumber, employed by the plumbing contractor and only three weeks into the job, was working on site on 20 June 2012. While moving between floors and drilling clips for a downpipe, he fell through an uncovered or inadequately covered skylight opening, dropping approximately three metres and sustaining injuries that required hospitalisation.
The defendant pleaded guilty to a charge under s 19(1) of the Work Health and Safety Act 2011, which requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers engaged by that person while at work.
Legal Issues
- Whether the defendant breached his primary duty of care under s 19(1) of the Work Health and Safety Act 2011 as a person conducting a business or undertaking
- What sentence, including the quantum of any fine, was appropriate having regard to the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999
- What weight should be given to aggravating and mitigating factors, including the seriousness of the injury, absence of prior convictions, co-operation, early guilty plea, and remorse
- Whether the defendant's financial circumstances warranted a reduction in the fine under s 6 of the Fines Act 1996
Decision
Kearns DCJ sentenced the defendant on the basis of an early guilty plea. The court accepted that the defendant had inspected the site at 7am and observed the skylight openings were covered at that time. The apprentice, however, later found the pallets in a corner of the site with the opening uncovered, suggesting someone else had moved them after the defendant's inspection. The court noted that, on those facts, the least physical responsibility for the accident rested with the defendant, and that the plumbing contractor bore considerably greater responsibility, particularly given the youth and inexperience of the injured worker.
Despite the reduced physical culpability of the defendant, the court treated the offence as serious. Falls on construction sites carry potentially catastrophic consequences, and the seriousness of an offence of this kind is measured by its potential outcomes rather than solely by what actually resulted. The court also noted that the worker had received no safety training and that the defendant was not present on site at all relevant times, nor were the skylight coverings secured in place.
On specific deterrence, the court found this to be a one-off, private construction project that the defendant was unlikely ever to repeat, so specific deterrence carried little weight. General deterrence was relevant but moderated by the fact that this was not a commercial builder or property investor; it was an unusual, private family arrangement in a distinct class.
The court accepted the mitigating factors: no prior convictions, good character evidenced by references, genuine co-operation with WorkCover, an early guilty plea attracting a 25 per cent discount, and some remorse (though the court noted that remorse would have carried more weight had the defendant made contact with the injured worker to inquire about his welfare). The sole significant aggravating factor was the seriousness of the injury to the victim. The defendant's financial circumstances, including combined household income and property holdings, did not support a reduction under s 6 of the Fines Act 1996.
Orders Made
- The defendant was convicted of the offence charged under s 19(1) of the Work Health and Safety Act 2011
- The defendant was fined $15,000 (after a 25 per cent early guilty plea discount applied to an underlying penalty)
- A moiety (half) of the fine was ordered to be paid to the prosecutor
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $8,000
Key Takeaways
- Under s 19(1) of the Work Health and Safety Act 2011, an owner-builder overseeing a private residential construction project can be a "person conducting a business or undertaking" and subject to the primary duty to ensure worker health and safety.
- The seriousness of a workplace safety offence is assessed by reference to potential consequences, not only actual harm; falls on construction sites are treated as inherently serious regardless of the specific outcome in a given case.
- Where another party bears greater physical responsibility for an accident, that consideration may reduce the appropriate penalty, but it does not displace the defendant's own liability for failing to ensure safe conditions.
- Specific deterrence carried little weight in this matter because the construction was a private, one-off project unlikely to be repeated, distinguishing it from cases involving commercial builders or property developers.
- A fine of $15,000 (from a maximum of $300,000) reflected the combination of reduced culpability, strong mitigating factors, and the defendant's particular circumstances, while still serving the purposes of general deterrence and adequate punishment.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 19(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), s 6
Cases cited: No cases were cited in the judgment.