WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78

WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78

The defendant, as a self-employed person and project manager, owed a positive and absolute duty under s 16(2) of the Occupational Health and Safety Act 1983 to ensure that persons not in his employment were not exposed to risks to their health or safety. By failing to undertake a risk assessment, identify and manage confined spaces, isolate the water supply, ensure adequate access/egress, provide required training, and communicate unambiguous safety instructions regarding entry into the pipe and pit, the defendant allowed non-employees to be exposed to grave risks, resulting in a fatality, thereby committing the charged offence.

Parties
Prosecutor: WorkCover Authority of New South Wales (Inspector Clark); Defendant: Raymond John Jabboury
Jurisdiction
Australia
Judgment Date
20 April 2001
Procedural Posture
Prosecution / Judgment on Verdict; Sentencing and Costs Reserved
Outcome
Defendant found guilty; matter stood over for sentencing and costs
Legal Topics
Self Employed Persons' Duties, Risks to Non Employees, Confined Spaces, Causal Nexus, Risk Assessment, Safety Instructions, Access and Egress, Training Requirements
Occupational Health and Safety Industrial Law Self Employed Persons' Duties Risks to Non Employees Confined Spaces Causal Nexus Risk Assessment Safety Instructions +2 more

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Parties

WorkCover Authority of New South Wales (Inspector Clark)

Prosecutor

Raymond John Jabboury

Defendant

Procedural Posture

Prosecution / Judgment on Verdict; Sentencing and Costs Reserved

Legal Issues

  1. 1 Whether the defendant, a self-employed person, failed to ensure that persons not in his employment were not exposed to risks to their health or safety arising from the conduct of his undertaking, contrary to s 16(2) of the Occupational Health and Safety Act 1983
  2. 2 Whether the defendant's actions or omissions were causally connected to the exposure to risk and subsequent fatality
  3. 3 Whether the specific failures in the particulars of the charge are proven beyond reasonable doubt

Ratio Decidendi

The defendant, as a self-employed person and project manager, owed a positive and absolute duty under s 16(2) of the Occupational Health and Safety Act 1983 to ensure that persons not in his employment were not exposed to risks to their health or safety. By failing to undertake a risk assessment, identify and manage confined spaces, isolate the water supply, ensure adequate access/egress, provide required training, and communicate unambiguous safety instructions regarding entry into the pipe and pit, the defendant allowed non-employees to be exposed to grave risks, resulting in a fatality, thereby committing the charged offence.

Court Disposition

Defendant found guilty; matter stood over for sentencing and costs