UPDATE 20 DECEMBER 2023
NRWHS has received contact from Mrs. Pamela Meoushy regarding the content and intent of this article.
Mrs Meoushy made the following claims in emails which we will contest:
The incident was not a 'dangerous incident'
The worker was never admitted to hospital.
The worker suffered no Serious Injuries.
A safety manager would not identify the incident as notifiable.
As a gesture of my intent towards the Meoushy family, I have removed the picture of Alex Meoushy but will be leaving the individuals name in there as there is no reason to remove it.
I always encourage contact about articles as I want these to serve a more educational purpose than 'naming and shaming'. If we can learn from the mistakes of others, I am sure everyone, even those who have committed safety crimes, would rather that.
Original Article - Published 23 November 2023
SafeWork NSW v Meoushy [2023] NSWDC 498
In this sort of case, I must affirm that we are not going after individuals but hoping we can learn from the crimes of others so we don't make the same mistakes.
On 24 August 2020 Mr Meoushy was a person with management and control of a workplace. A notifiable incident occurred involving a Mr Mohammad Hoque (this case, the incident, does not appear to have worked its way through the courts yet so I won't provide any detail).
Mr Meoushy had a duty under s 39(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as was reasonably practicable that the site where the incident occurred was not disturbed until an inspector arrived at the site or as directed by an inspector at any earlier time.
The defendant was the holder of a first aid certificate at the time, and having observed Mr Hoque for some 10-15 minutes after the incident formed the view that Mr Hoque’s injuries were not serious, and he sent an ambulance away. He made a significant error of judgment regarding the seriousness of Mr Hoque’s injuries, and that he then called an ambulance away. Mr Hoque required surgery for his injuries.
The incident site was disturbed in that crane work and concrete plumbing resumed and the formwork deck where Mr Hoque was injured was rebuilt, such that the area where Mr Hoque was injured was moved or disturbed. That tampered with the site and SafeWork would not have been able to investigate properly.
It is unusual to see an individual defendant sentenced before the company/business which indicates either there is no prosecution coming forward or the prosecutor has had to perform a 'protracted prosecution' (usually prosecutor code for "we screwed up and charged someone before we investigated, now we need time to 'find' evidence before court").
In any event Mr Meoushy was convicted - given standard mitigating factors, fined and will also have to pay prosecutors costs once they decide what they are (for such a simple case where the defendant plead guilty, I would expect them to be well under $10,000).
So this is an example, tampering with a crime scene/incident site or whatever you want to call it has penalties. SafeWork are on a bit of an education mission at the moment with regards to disturbing sites.
Response - 20/12/2023
The incident was not a 'dangerous incident' but at no point in the article or the court case did the word 'dangerous incident' appear. It was however a notifiable incident under the Work Health and Safety Act 2011 (NSW).
The worker was absolutely admitted to hospital. This was outlined clearly in the Prosecutors Tender Bundle which included records from NSW Ambulance and NSW Health showing the worker was admitted to hospital (Mr Meoushy's plea of guilty means he accepts all records in the PTB to be true and correct). The PTB and Agreed Statement of Facts (meaning his Barrister and the Prosecutor agreed what was going into court was true) also outline this. Additionally, it was stated that the worker was admitted to hospital at [6] and [22] of the case based on the PTB and ASOF.
The workers injuries included serious injuries such as multiple segmental fractures to his ribs and a torn right rotator cuff. The seriousness of the injuries was outlined clearly at [6] and [22] of the case. It was clearly outlined that Mr Meoushy sent away an ambulance because he underestimated the severity of the injury and then called the ambulance back later once he realised his mistake at [22].
Whether or not a person would identify the incident as notifiable is immaterial to this case as the simple fact is the incident was notifiable, it was a site to be preserved and it was not preserved. All WHS offences are offences of strict liability meaning intent is not a pre-requisite to the offence otherwise everyone who killed a worker would just say they didn't mean to. Any competent WHS advisor/manager/officer would know what is and isn't a notifiable incident as it is simply any death, serious injury/illness or a dangerous incident. This is covered in all vocational and tertiary courses in WHS and is pre-requisite knowledge to obtain a WHSO certificate of authority from Industrial Relations. If the PCBU did not have knowledge of what is and isn't notifiable, it would be up to the Officers of the PCBU in meeting their due diligence standards to hire a person or undertake training in WHS themselves.