Citation: WorkCover Authority of NSW v Interlink Carpentry and El-Bayeh [2015] NSWDC 277
Court: District Court of New South Wales
Date: 9 June 2015
Judge: Curtis J
Background
On 15 October 2011, a 22-year-old building manager named Aidan Chan was killed at 33 York Street, Sydney when a wall under demolition collapsed onto him. The wall weighed approximately 400 kilograms. The demolition was being carried out by Interlink Carpentry Projects Pty Limited, a company operated by its director, Mr Allan El-Bayeh.
Mr Chan worked for the company responsible for maintaining the building and was present to provide access to the demolition crew. Mr El-Bayeh directed his workers to begin by removing the middle section of the wall's vertical panels, which caused the upper portion to become unsupported and free to fall. As Mr Chan passed through an opening created in the wall, the upper section fell and crushed him.
Both Interlink Carpentry and Mr El-Bayeh pleaded guilty to separate charges under the Occupational Health and Safety Act 2000. The matter before the District Court was sentencing.
Legal Issues
- What was the appropriate fine for Interlink Carpentry Projects Pty Limited for failing to ensure, so far as reasonably practicable, that Mr Chan was not exposed to risks to his health and safety arising from the conduct of its undertaking (contrary to s 83 of the Occupational Health and Safety Act 2000)?
- What was the appropriate fine for Mr El-Bayeh personally for failing to exercise due diligence to ensure his company complied with its safety obligations (contrary to s 26(1) of the same Act)?
- How should aggravating and mitigating factors, including capacity to pay, parity with a related sentence, and the degree of objective seriousness, be weighed in fixing the penalties?
Decision
Curtis J characterised the defendants' conduct as falling into the worst category of offence. Mr El-Bayeh had undertaken no investigation of the wall's structure, conducted no risk assessment, prepared no safe work method statement, and established no exclusion zone. The court found the negligence to be "quite gross" and the harm entirely foreseeable. The defendants were, in the court's words, "oblivious to any concerns for safety."
On aggravating factors, the court noted the extreme harm caused to Mr Chan and the lasting, devastating impact on his family. The offence also involved a grave risk of death, which is a specific aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The court took into account that Mr El-Bayeh's absence of prior convictions appeared to owe more to good fortune than good practice, which significantly reduced the weight of that mitigating factor.
On parity, the court noted that another company, CVD Asset Management Pty Limited (Mr Chan's employer), had been fined $250,000 by Judge Finnane for its role in the same incident. The court found that Interlink Carpentry bore greater responsibility than CVD Asset Management because Mr El-Bayeh was the only person present with relevant trade qualifications and was the one directing the dangerous work sequence.
Regarding Mr El-Bayeh's personal financial position, the court assessed his net assets at approximately $500,000, attributing roughly $250,000 to him after accounting for his wife's joint ownership of property. His annual income was $80,000. The court accepted that his capacity to pay was relevant under s 6 of the Crimes Act 1996 but did not treat it as a basis for a substantial reduction given the gravity of the offending.
Orders Made
- Interlink Carpentry Projects Pty Limited was convicted and fined $300,000 (a $400,000 base fine reduced by 25% for the guilty plea).
- Mr El-Bayeh was convicted and fined $33,750 (a $45,000 base fine reduced by 25% for his early guilty plea and cooperation with authorities).
- The prosecution was awarded a moiety of the fines (meaning half of each fine is paid to the prosecution authority, as provided by statute).
- The defendants were ordered to pay the prosecution's costs, as agreed or assessed.
Key Takeaways
- The District Court placed this case in the worst category of work health and safety offending, reflecting a total absence of planning, risk assessment, and elementary safety precautions before demolition work began.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, the presence of a grave risk of death and the severe, ongoing harm to the victim's family are statutory aggravating factors that can significantly influence the sentence imposed on a corporate or individual defendant.
- A 25% discount on the base fine was applied for early guilty pleas and cooperation, consistent with the sentencing court's general approach to recognising utilitarian value in pleas of guilty.
- Parity with sentences imposed on other defendants arising from the same incident is a relevant consideration, but the court distinguished between parties on the basis of their respective expertise, role, and degree of responsibility for the harm caused.
- Where a director is the only qualified tradesperson present and personally directs the dangerous work sequence, his individual culpability can exceed that of the client company, supporting a higher proportional penalty relative to that company's own fine.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8(2), 26(1), 83
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1996 (NSW), s 6
Cases:
No specific cases were cited in the text of the judgment. The decision refers to a related sentence imposed by Judge Finnane on CVD Asset Management Pty Limited in a connected matter, but that decision is not separately cited.