NOTE: THE DECISION IN THIS MATTER IS THE SUBJECT OF AN APPEAL

On 25 March 2022, following a four-day trial in the Gympie District Court, Jeffrey Owen was convicted and sentenced for an offence of industrial manslaughter, contrary to section 34C of the Work Health and Safety Act 2011 (‘the Act’). The conviction is the first conviction of an individual for the offence of industrial manslaughter since the offence provision was enacted in 2017. The defendant was sentenced to 5 years imprisonment, suspended after having served 18 months’ imprisonment, for an operational period of 5 years. A conviction was recorded.

The offence occurred at a premises in Gympie, where the defendant operated a business that involved the repair and maintenance of electrical items, including generators. On 3 July 2019, a generator was delivered to the business premises on a flatbed truck. The defendant used a forklift to remove the generator from the back of the truck. While moving the generator on the forklift, the generator fell from the tines and landed on another worker, resulting in his death. The worker was a friend of the defendant who was onsite and had been assisting the defendant in his efforts to move the generator.

The prosecution alleged that the defendant’s conduct was negligent because:

  • He was not licenced to operate a forklift;
  • The business operated by him did not have any documented health and safety procedures, in particular, procedures concerning the use of the forklift to unload heavy equipment;
  • The forklift had a lifting capacity that was inadequate for its use in unloading the generator;
  • The defendant failed to make proper enquiries as to the weight of the generator;
  • The generator was not designed to facilitate it being lifted by a forklift;
  • The defendant failed to designate an exclusion zone preventing pedestrian ingress into the area where the unloading of the generator was to take place;
  • The defendant failed to provide proper instruction, training or supervision to the other worker to ensure that he remained at a safe distance from the suspended generator;
  • It became apparent during the attempted unloading process that the forklift’s lifting capacity was inadequate for the task, however the defendant persisted, including while a worker was positioned to the rear of the forklift; and
  • Safe, alternative methods of unloading the generator were available at low cost.

In finding the defendant guilty, the jury was satisfied that the defendant’s conduct was negligent and that it caused the death of the worker on whom the generator fell.

In sentencing the defendant, His Honour Judge Cash QC observed that while the deceased worker had placed himself in harm’s way, that did not relieve the defendant of his responsibilities.

His Honour noted that the sentence to be imposed needed to reflect considerations of punishment, general and specific deterrence, and denunciation, as well as the defendant’s lack of previous convictions, remorse, and other personal circumstances. It was also relevant that since the incident the defendant had put in place all necessary measures to address the concerns identified.

OWHSP contact: enquiries@owhsp.qld.gov.au

Court Report

General
Industry
Electrical and air conditioning
Date of offence
Injury
Fatality
Court
Gympie District Court
Magistrate or judge
Judge Glen Cash QC
Decision date
Company Officer
Legislation

Section 34C of the Work Health and Safety Act 2011

Plea
Not Guilty
Penalty
5 years imprisonment, suspended after serving 18 months imprisonment for an operational period of 5 years
Maximum fine available
20 years imprisonment
Professional and legal costs
N/A
Court costs
N/A
In default period
Imprisonment
Time to pay
N/A
Conviction recorded
Yes