On 25 August 2020, the defendant company was sentenced in the Richlands Magistrates Court for breaching s 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to meet their work health and safety duty under section 19(1) of the Act, to ensure the health and safety of their workers, so far as is reasonably practicable, and exposing a worker to a risk of death or serious injury. The defendant was fined $25,000. A conviction was recorded.
On 20 November 2018, in the packing room of the Wild Breads Pty Ltd speciality bakery factory in the Brisbane suburb of Darra, a worker was crushed between a stationary forklift and a forklift being reversed by another worker. The forklift driver was not looking in the direction of travel while reversing the forklift. The injured worker sustained soft tissue injuries.
An investigation by Workplace Health and Safety Queensland (‘WHSQ’) revealed that in October 2018, the company had identified forklifts in the packing room as a significant risk. The company confirmed they would implement line marking and a “toolbox talk” to mitigate the risk but did not action the measures. On 7 November 2018, a worker was struck by a forklift in the packing room of the factory without suffering significant injuries. The defendant again considered the implementation of controls to mitigate the risk, including line marking and pedestrian separation barriers. Prior to the incident on 20 November 2018, the defendant had also assessed the need for a traffic management plan. None of these measures were implemented or finalised prior to the incident.
In considering the penalty to be imposed, Magistrate Shearer considered the nature and seriousness of the offence, noting that the injured worker sustained only soft tissue injuries, was discharged shortly after being admitted to hospital, and returned to work within a few days. His Honour also acknowledged the importance of general and specific deterrence, denunciation and protection of the community.
Magistrate Shearer determined that culpability for the offence lay almost entirely with the forklift operator, commenting that his actions were “grossly negligent”. His Honour noted that the defendant should have implemented measures sooner; however, stated that the defendant company was entitled to rely on the assumption that an experienced and licenced worker would operate the forklift safely. His Honour also noted that the forklift operator acted in breach of the Standard Operating Procedures (SOP), which explicitly directed operators to look both ways before reversing and give pedestrians the right of way. His Honour stated that this significantly reduced the defendant’s culpability.
His Honour distinguished the incident from situations where employers were solely responsible and from matters that resulted in serious injury or death. Magistrate Shearer was of the view that implementation of the measures would not have prevented the incident or mitigated the carelessness, negligence and stupidity of the operator.
His Honour stated that there should be some relationship or parity with the fine imposed on the forklift operator, whom he fined $3,000 for the incident. He commented that he could not understand why the penalties imposed upon corporations were substantially higher compared to individuals, aside from the higher maximum penalties.
In recording a conviction, his Honour noted that this was the fourth occasion that the company had been prosecuted for work health and safety offences, albeit occurring over the span of a decade.
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Section 32, duty 19(1) Work Health and Safety Act 2011