WorkCover Authority of NSW v Interlink Carpentry and El-Bayeh [2015] NSWDC 277

WorkCover Authority of NSW v Interlink Carpentry and El-Bayeh [2015] NSWDC 277

The defendants' failures were gross and the risk was completely foreseeable: there was no investigation of the wall or demolition sequence, no risk assessment, no exclusion zone, no safe work method statement, and no observance of elementary precautions. The conduct caused the death of Mr Chan and placed the case in the worst category of offence. After considering aggravating and mitigating factors, parity, deterrence, capacity to pay and the 25% guilty plea discount, the court imposed fines of $300,000 on Interlink Carpentry Pty Limited and $33,750 on Mr El-Bayeh.

Jurisdiction
Australia
Judgment Date
09 June 2015
Procedural Posture
Criminal Work Health and Safety Prosecution / Sentence Following Guilty Pleas
Outcome
Both defendants were convicted and fined.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'duty of Employers' 'risk of Death or Serious Injury' 'death of Worker During Demolition' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay' 'guilty Plea Discount']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'duty of Employers' 'risk of Death or Serious Injury' 'death of Worker During Demolition' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'capacity to Pay' 'guilty Plea Discount']

Case Brief

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Procedural Posture

Criminal Work Health and Safety Prosecution / Sentence Following Guilty Pleas

Legal Issues

  1. 1 ['Whether Interlink Carpentry failed to ensure, so far as reasonably practicable, that Mr Chan was not exposed to risks to his health and safety arising from its undertaking at its place of work.' 'Whether Mr El-Bayeh failed to exercise due diligence to ensure Interlink Carpentry complied with its occupational health and safety obligations.' 'What penalties were appropriate having regard to objective seriousness, aggravating and mitigating factors, deterrence, guilty pleas, parity and capacity to pay.']

Ratio Decidendi

The defendants' failures were gross and the risk was completely foreseeable: there was no investigation of the wall or demolition sequence, no risk assessment, no exclusion zone, no safe work method statement, and no observance of elementary precautions. The conduct caused the death of Mr Chan and placed the case in the worst category of offence. After considering aggravating and mitigating factors, parity, deterrence, capacity to pay and the 25% guilty plea discount, the court imposed fines of $300,000 on Interlink Carpentry Pty Limited and $33,750 on Mr El-Bayeh.

Court Disposition

Both defendants were convicted and fined.

Orders

  • ['Interlink Carpentry Pty Limited is convicted and fined $300,000.' 'Mr El-Bayeh is convicted and fined $33,750.' 'The prosecution is to have a moiety of the fines.' "The defendants are to pay the prosecution's costs as agreed or assessed."]