On 3 November 2022, a company which runs a beef cattle business was sentenced in the Roma Magistrates court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty pursuant to section 19(1) of the Act.
The defendant owned a telehandler, which is a piece of plant that can be used in a variety of agricultural settings. At the relevant time, the telehandler was fitted with a pair of tines, enabling it to be used as a forklift.
On 14 January 2021, a worker was operating the telehandler and using it to transport a bin containing urea (a granulated fertiliser) in order to deposit the urea into a plane. The plane would then apply the fertiliser and return to the airstrip to be reloaded with urea.
On that date, the grandson of the worker who was operating the telehandler and the deceased worker were present and watching the process of loading the urea onto the plane.
While the plane was being reloaded the grandson and deceased worker were talking and walking. The telehandler began backing away from the plane and the grandson told the deceased worker that he thought the telehandler was going to move towards them and they should move. The grandson warned the deceased worker about the telehandler twice more then moved towards the fence. The deceased worker was run over by the telehandler and sustained fatal injuries. An ambulance attended but the deceased worker was unable to be revived.
The telehandler was found to be in an unsatisfactory mechanical condition, although none of the identified mechanical defects could have contributed to the cause of the incident. The reversing alarm on the telehandler had a reduced audible output and the telehandler was not fitted with a right-side rear vision mirror.
The defendant failed to take reasonable care that its actions did not affect the health and safety of the deceased worker. Control measures the defendant could have implemented included implementing an adequate exclusion zone to prevent persons from being in proximity when reversing activity of the telehandler was being conducted, issuing a clear work instruction to its workers to implement an adequate exclusion zone when the telehandler was being operated, training and instructing workers in the above, and ensuring that its powered mobile plant was maintained and in working order.
In sentencing, Magistrate Elliott indicated that in this matter general deterrence was a more important factor than specific deterrence as the defendant had no prior convictions. Further mitigating features referred to by his Honour included the defendant’s early plea of guilty, its genuine remorse, the director of the defendant company was a good citizen, and the defendant was a generous supporter of charities and local activities.
His Honour noted that the defendant had cooperated with authorities, noting that the defendant not only implemented the measures which it had been directed to implement, but went beyond this and implemented measures beyond those which were required. His Honour noted, however, as referred to in the case of Mac Plant that the defendant does not get credit for making the workplace safe, as all workplaces should be safe.
His Honour considered the decisions placed before him and considered that the matter of Bennett Developments v Steward to be of the most assistance, and the most comparable to the matter before the court.
His Honour had regard to the factors outlined in section 9 of the Penalties and Sentences Act 1992. Taking into account all matters and the circumstances of the offending, his Honour fined the defendant $200,000.
His Honour referred to section 12 of the Penalties and Sentences Act 1992 when considering whether to record a conviction. His Honour considered the nature of the offence, the lack of any prior offences, and the good reputation of the defendant and exercised his discretion to not record a conviction.
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Sections 19(1), 32 of the Work Health and Safety Act 2011