On 8 July 2021, a construction company was fined $65,000 in the Brisbane Magistrates Court after pleading guilty to an offence pursuant to section 32 of the Work Health and Safety Act 2011 (‘the Act’) for failing to ensure mobile plant it managed at a workplace was without risk to the health and safety of persons.
The defendant construction company was engaged to carry out the construction of a townhouse complex at Newmarket. It contracted another company to complete plumbing and civil works for the project which included installation of the stormwater and sewer for the townhouses to be constructed.
On 23 October 2019, workers of the subcontracted company and the defendant were at the site. There was a delivery of sand to the site for the subcontractor. A worker of the subcontractor asked one of the defendant’s workers to move the spoil from in the driveway to make way for the delivery truck. The worker boarded a skid steer front end loader Posi Tracks (‘Posi Track’) owned by the defendant and drove it down the driveway honking the horn to get the subcontractor’s workers to move out of his path. The worker proceeded to the move the spoil in the driveway while a worker of the subcontractor was on the driveway providing signals for the delivery truck driver. The subcontractor worker stepped backwards behind the Posi Track and the Posi Track reversed over his right leg. The worker was transported by ambulance to hospital where he was found to have a right tibia and fibula shaft fracture which required surgery.
The defendant had a Workplace Health and Safety Management Plan (‘WHS Management Plan’) and a Safe Work Method Statement (‘SWMS’) which indicated for “spotters (to be) used as required” and to ensure that areas the Posi Track is to be used “are clearly marked and barricaded where necessary to make safe from other traffic”. These were not in place at the time of the incident. Additionally, there was no internal traffic management plan at the worksite.
Post incident, the defendant implemented barricading, signage and exclusion zones at the worksite. The defendant also issued a direction to workers that a spotter be used when the machinery is in operation and that the spotter use a two-way radio to communicate with the driver.
In sentencing, Magistrate Mark Nolan accepted there was no dispute as to what happened on 23 October 2019 and that the defendant had not arranged or anticipated other work to be done at the worksite, or deliveries to be made, but that had occurred.
His Honour accepted the defendant had procedures or policies in place which were not implemented by the defendant’s worker. It was acknowledged by his Honour that the defendant had rectified its policies and procedures to now make it mandatory that a spotter, barricades and signage be required. His Honour indicated it was a basic and simple procedure which could have been in place to avoid this incident.
It was accepted that the defendant had been cooperative with the investigation, had no history of prior contraventions of the WHS Act, and had entered a timely plea of guilty to the offence. His Honour said there had been significant cooperation by the defendant and that the defendant had put in place changes to avoid this happening again, including that employees were more engaged now with work health and safety matters and that the new training conducted by the defendant was commendable.
The victim impact statement of the injured subcontractor worker which detailed significant and ongoing difficulties resulting from the incident was taken into account. It was acknowledged by his Honour that the worker had to make significant adjustments to his life due to the difficulties he now faces.
His Honour agreed that in light of the significant and immediate changes the defendant made post incident that personal deterrence was not relevant. General deterrence was identified as an important consideration in sentence by his Honour who also commented the significant maximum penalty for the offending was indicative of the view the community held of the offending, that persons like the defendant need to protect persons who go to workplaces and put in place systems to make persons safe. It was accepted by his Honour that duty involved more than documentation, that matters need to be activated and that policies in place at the time of this incident may have prevented this tragedy.
In all the circumstances of this matter, his Honour indicated a significant fine was required to reflect general deterrence and the significance of the breach of duty. His Honour declined to record a conviction against the defendant, noting the defendant’s early plea, absence of history, steps taken post this incident and the cooperation with the investigation.
OWHSP contact: firstname.lastname@example.org
Sections 21(1) and 32 of the Work Health and Safety Act 2011