WorkCover Authority of NSW v Alameddine [2014] NSWDC 303

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Alameddine [2014] NSWDC 303 Hearing dates: 30 October 2014 Decision date: 30 October 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is convicted and fined Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Mohamed Alameddine (Defendant) Representation: Counsel: M Cahill appeared for the Prosecutor No appearance for the Defendant

Solicitors: WorkCover Legal Group (Prosecutor) File Number(s): 2013/14362

remarks on sentence 1. The defendant Mr Mohamed Alameddine is charged that contrary to s 20 of the Occupational Health and Safety Act 2000 between 21 January 2011 and 24 January 2011 at Meadowbank in the course of his employment with Robertson's Painting, by his acts and omissions he failed to take reasonable care for the health and safety of various persons, including Mr Rabih Osman. 2. Mr Alameddine was a Common Law employee of the painting contractor Robertson's Painting and Decorating Pty Limited. Although some evidence was consistent with his working as an independent contractor, it is plain that he worked exclusively for Robertson's and was paid at an hourly rate. He was responsible to directions from Robertson's officers. 3. On the day in question Mr Alameddine was charged with the responsibility of a Project Manager at a home unit building at Meadowbank . The work required external painting. For the purpose of doing this work Mr Alameddine commissioned the hire of an elevated work platform from Rapid Access. The platform was unsuitable for sloping sites, a circumstance known to Mr Alameddine. 4. Mr Alameddine instructed the workers, whose safety was put at risk, to operate the machine, although he knew that none of them was trained in its operation. In particular he failed to inform those workers that the machine emitted an audible signal if its stability was threatened. 5. Mr Alameddine also failed to ensure that the workers present in the elevated work platform wore safety harnesses. 6. In consequence of the machine being used on a sloping site, and extending beyond its safe reach, it toppled over and Mr Osman was thrown from the platform. He died as a result of his injuries. 7. The summons identifies the acts or omissions of Mr Alameddine as failing to identify safe locations for the alteration of the boom, failing to perform a risk assessment in relation to its use and failing to inform Mr Osman and the others as to the presence of the alarm and failing to exercise reasonable supervision. Each of these omissions is proved. 8. Moreover before the accident, one of the workers, Mr Konstantynyuk, told Mr Alameddine that he was not licensed to operate the boom lift, that he did not know how to operate it, and that he was not comfortable. 9. The maximum penalty is $3300. This offence is at the gravest end of the spectrum, and it is appropriate that a fine of $3000 be imposed in recognition of the need for specific and general deterrence, and to denounce the conduct of the offender. There are no subjective factors before me which entitle the defendant to any reduction of that sum. 10. The defendant is convicted and fined $3000. I direct that WorkCover have a moiety of the fine. The defendant is to pay the costs of the prosecution as agreed or assessed.