WorkCover Authority of New South Wales (Inspector Webster) v Power Rise Pty Limited and ors [2008] NSWIRComm 26

WorkCover Authority of New South Wales (Inspector Webster) v Power Rise Pty Limited and ors [2008] NSWIRComm 26

The offences were objectively serious because the defendants' failures left a reasonably foreseeable risk that workers would fall through an inadequately and insecurely covered floor penetration at a construction site, and serious injury in fact occurred. Power Rise and Mr Gabrael were equally culpable because Power Rise controlled the site and Mr Gabrael was the director responsible for site management, while Mr Achouh's culpability was serious but lower. General deterrence was relevant; specific deterrence applied but was of limited significance because Power Rise no longer operated, Mr Gabrael was no longer able to work as a builder, and Mr Achouh's circumstances reduced the risk. The...

Jurisdiction
Australia
Judgment Date
03 March 2008
Procedural Posture
Occupational Health and Safety Prosecutions Under the Occupational Health and Safety Act 2000 / Sentencing After Pleas of Guilty
Outcome
All three defendants were convicted. Power Rise Pty Limited was fined $32,500, Nadim Gabrael was fined $1,500, and Ali Achouh was fined $2,500. A moiety on each penalty was allocated to the prosecutor and the defendants were ordered to pay the prosecutor's costs in equal proportions as agreed or assessed.
Legal Topics
['construction Site Safety' 'unsafe Floor Penetration' 'duties of Controller of Premises' 'employer Duty to Employees' 'director Liability' 'foreseeability' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'guilty Plea Discount' 'financial Capacity to Pay Fines']
['occupational Health and Safety' 'criminal Sentencing'] ['construction Site Safety' 'unsafe Floor Penetration' 'duties of Controller of Premises' 'employer Duty to Employees' 'director Liability' 'foreseeability' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'guilty Plea Discount' 'financial Capacity to Pay Fines']

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Procedural Posture

Occupational Health and Safety Prosecutions Under the Occupational Health and Safety Act 2000 / Sentencing After Pleas of Guilty

Legal Issues

  1. 1 ['What penalties should be imposed on the defendants after guilty pleas to offences under the Occupational Health and Safety Act 2000.' 'Whether the risk of injury from an inadequately and insecurely covered floor penetration was reasonably foreseeable and how that affected objective seriousness.' "What weight should be given to general deterrence, specific deterrence, lack of prior convictions, cooperation, contrition, guilty pleas and the defendants' financial circumstances." "Whether Power Rise Pty Limited and Nadim Gabrael had equal culpability and whether Ali Achouh's culpability was lower."]

Ratio Decidendi

The offences were objectively serious because the defendants' failures left a reasonably foreseeable risk that workers would fall through an inadequately and insecurely covered floor penetration at a construction site, and serious injury in fact occurred. Power Rise and Mr Gabrael were equally culpable because Power Rise controlled the site and Mr Gabrael was the director responsible for site management, while Mr Achouh's culpability was serious but lower. General deterrence was relevant; specific deterrence applied but was of limited significance because Power Rise no longer operated, Mr Gabrael was no longer able to work as a builder, and Mr Achouh's circumstances reduced the risk. The...

Court Disposition

All three defendants were convicted. Power Rise Pty Limited was fined $32,500, Nadim Gabrael was fined $1,500, and Ali Achouh was fined $2,500. A moiety on each penalty was allocated to the prosecutor and the defendants were ordered to pay the prosecutor's costs in equal proportions as agreed or assessed.

Orders

  • ['Matter No IRC 1309 of 2007: Power Rise Pty Limited is convicted of the offence charged under s 10(1) of the Occupational Health and Safety Act 2000.' 'Power Rise Pty Limited is to pay a penalty of $32,500.' 'A moiety on the penalty imposed on Power Rise Pty Limited is allocated to the prosecutor on the usual...