WorkCover Authority of NSW v Anywhere Tower Cranes Pty Ltd; WorkCover Authority of NSW v Ghada Nouh; WorkCover Authority of NSW (Inspector Jones) v Gabris; WorkCover Authority of NSW v Missingham [2007] NSWIRComm 44

WorkCover Authority of NSW v Anywhere Tower Cranes Pty Ltd; WorkCover Authority of NSW v Ghada Nouh; WorkCover Authority of NSW (Inspector Jones) v Gabris; WorkCover Authority of NSW v Missingham [2007] NSWIRComm 44

The crane incident was objectively serious because the mobile crane created a real risk of injury, the outriggers were not fully extended, the load changed without the operator being told, safety devices were inoperative or overridden, and effective instruction, supervision and risk assessment were absent. Anywhere Tower's penalty was tempered because it had some occupational health and safety systems, although they failed on the day. Ms Nouh was liable as sole director despite performing only administrative duties and not relying on a s26 defence. Mr Gabris was liable as a manager concerned in the management of Anywhere Tower and complicit in the breach; his financial circumstances were...

Jurisdiction
Australia
Judgment Date
23 March 2007
Procedural Posture
Prosecutions for Breaches of the Occupational Health and Safety Act 2000 / Sentencing After Guilty Pleas Heard Concurrently
Outcome
Each defendant was found guilty, convicted, and ordered to pay a monetary penalty with a moiety to the prosecution and prosecution costs assessed by the Court in default of agreement.
Legal Topics
['employer Duties to Employees and Others at Workplace' 'director and Manager Liability for Corporate Offences' 'mobile Crane Safety' 'labour Hire Company Occupational Health and Safety Obligations' 'penalty Assessment' 'general and Specific Deterrence' 'means to Pay Under Fines Act 1996' 'bankruptcy and Fines' 'parity in Sentencing']
['occupational Health and Safety' 'industrial Relations' 'criminal Sentencing'] ['employer Duties to Employees and Others at Workplace' 'director and Manager Liability for Corporate Offences' 'mobile Crane Safety' 'labour Hire Company Occupational Health and Safety Obligations' 'penalty Assessment' 'general and Specific Deterrence' 'means to Pay Under Fines Act 1996' 'bankruptcy and Fines' 'parity in Sentencing']

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Procedural Posture

Prosecutions for Breaches of the Occupational Health and Safety Act 2000 / Sentencing After Guilty Pleas Heard Concurrently

Legal Issues

  1. 1 ['What penalties should be imposed on the corporate defendant Anywhere Tower Cranes Pty Ltd for breach of s8(2) of the Occupational Health and Safety Act 2000.' 'What penalties should be imposed on Ghada Nouh and Tom Gabris under s26 of the Occupational Health and Safety Act 2000 for the corporate breach by Anywhere Tower Cranes Pty Ltd.' "Whether Tom Gabris' financial circumstances under s6 of the Fines Act 1996 should reduce the penalty imposed on him." 'What penalty should be imposed on Wayne David Missingham under s26 of the Occupational Health and Safety Act 2000 for the breach by Cashbend NSW Pty Ltd, including in light of his bankruptcy.' 'The objective seriousness of failures relating to risk assessment, supervision, traffic control arrangements, crane equipment, and load information.']

Ratio Decidendi

The crane incident was objectively serious because the mobile crane created a real risk of injury, the outriggers were not fully extended, the load changed without the operator being told, safety devices were inoperative or overridden, and effective instruction, supervision and risk assessment were absent. Anywhere Tower's penalty was tempered because it had some occupational health and safety systems, although they failed on the day. Ms Nouh was liable as sole director despite performing only administrative duties and not relying on a s26 defence. Mr Gabris was liable as a manager concerned in the management of Anywhere Tower and complicit in the breach; his financial circumstances were...

Court Disposition

Each defendant was found guilty, convicted, and ordered to pay a monetary penalty with a moiety to the prosecution and prosecution costs assessed by the Court in default of agreement.

Orders

  • ['Each of the defendants is found guilty of the offences as charged and convicted accordingly.' 'Penalties imposed: $100,000 on Anywhere Tower Cranes Pty Ltd, $9,000 on Ghada Nouh, $9,000 on Tom Gabris, and $15,000 on Wayne David Missingham, with a moiety to the prosecution.' 'Each defendant is to pay the costs of...