Citation: WorkCover Authority of NSW v Alameddine [2014] NSWDC 366
Court: District Court of NSW
Date: 30 October 2014
Judge(s): Curtis J
Background
The defendant was a project manager employed by Robertson's Painting and Decorating Pty Limited, working on external painting at a home unit building in Meadowbank. In January 2011, he arranged the hire of an elevated work platform (a boom lift) to carry out the work. The platform was not suitable for use on sloping surfaces, and the defendant was aware of this limitation at the time he hired it.
The defendant directed workers to operate the machine despite knowing none of them had been trained to do so. He also failed to ensure workers wore safety harnesses while in the platform. A worker, Mr Konstantynyuk, expressly told the defendant before the accident that he was not licensed or trained to operate the boom lift and was uncomfortable doing so.
The machine toppled over when used on a sloping surface and extended beyond its safe reach. A worker, Mr Osman, was thrown from the platform and died from his injuries.
Legal Issues
- Whether the defendant, as a common law employee, failed to take reasonable care for the health and safety of workers in breach of section 20 of the Occupational Health and Safety Act 2000
- Whether the defendant's specific acts and omissions, including failing to perform a risk assessment, failing to inform workers of the machine's stability alarm, failing to identify safe locations for operation, and failing to supervise adequately, were each proven
- What penalty was appropriate given the circumstances of the offence
Decision
Liability under section 20:
The court found that the defendant was a common law employee of Robertson's Painting, not an independent contractor, notwithstanding some evidence that pointed the other way (at [2]). As project manager on site, he bore responsibility for the safety of workers operating the boom lift (at [3]).
Proven omissions:
Each of the specific failures identified in the charge was established. These included failing to identify safe locations for repositioning the boom, failing to conduct a risk assessment, failing to inform workers about the machine's audible stability alarm, and failing to exercise reasonable supervision (at [7]). The court also found proven that the defendant knowingly hired a platform unsuitable for sloping terrain and directed untrained workers to operate it, including workers who had explicitly raised concerns (at [3]-[4], [8]).
Penalty:
The maximum penalty for the offence was $3,300. Curtis J characterised the offending as sitting at the gravest end of the spectrum, given the fatal outcome and the accumulation of serious safety failures (at [9]). No subjective factors were raised in mitigation. The court imposed a fine of $3,000, reflecting the need for specific and general deterrence and denunciation of the conduct (at [9]).
Orders Made
- The defendant was convicted of the charge under section 20 of the Occupational Health and Safety Act 2000
- A fine of $3,000 was imposed
- WorkCover Authority was directed to receive half (a "moiety") of the fine
- The defendant was ordered to pay the costs of the prosecution, as agreed or assessed
Key Takeaways
- A project manager employed as a common law worker can be personally liable under section 20 of the Occupational Health and Safety Act 2000 for failing to take reasonable care for the health and safety of fellow workers, even where the employer is a separate corporate entity (at [2]-[3]).
- Knowingly hiring equipment unsuitable for site conditions, directing untrained workers to operate it, and failing to act on explicit warnings from a worker about their lack of competence each constitute failures to take reasonable care within the meaning of the provision (at [3]-[4], [8]).
- The District Court treated the failure to perform a risk assessment, the absence of safety harnesses, and the failure to inform workers of a machine's safety alarm as independently proven omissions contributing to the overall contravention (at [4]-[5], [7]).
- Where a fatality results from an accumulation of foreseeable safety failures, a court may characterise the conduct as falling at the gravest end of the sentencing spectrum and impose a penalty close to the statutory maximum (at [9]).
- The absence of any mitigating subjective factors left no basis to reduce the penalty below $3,000, just $300 short of the legislative ceiling (at [9]).
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Not stated