On 18 March 2022, a forklift driver was sentenced in the Beenleigh Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty as a worker pursuant to section 28 of the Act. Magistrate Terry Duroux fined the defendant $6,000. A conviction was not recorded.
The defendant was employed as a forklift driver. The defendant was responsible for using the forklift to unload timber which had been delivered to the site in a truck by another worker (“Worker B”). Upon arrival at the workplace, Worker B exited the truck, pulled back the side curtains on the truck’s trailer, and began removing the straps holding the timber in place.
The defendant asked Worker B several times to move away from the forklift, but nonetheless continued operating the forklift with Worker B in close proximity.
At one point the defendant began reversing the forklift to remove some of the timber from the truck’s trailer. The timber which was being moved became caught on a nearby stack of timber, which then fell from a height onto Worker B. Worker B sustained significant injuries including multiple skull fractures, and fractures to the pelvis, leg and hand, as well as a perforated intestine.
The defendant immediately went to the aid of Worker B. An ambulance was called and transported Worker B to hospital where he underwent immediate surgery and was placed into an induced coma for a period of time.
In sentencing the defendant, Magistrate Duroux observed that while the defendant had asked Worker B to move away, the risk could have been averted by the defendant simply ceasing to operate the forklift. His Honour also had regard to the seriousness of the injuries occasioned, and the effect of the incident on Worker B and his family.
In mitigation, Magistrate Duroux took into account the defendant’s guilty plea and extensive co-operation with the investigation and authorities. His Honour accepted that this incident was out of character for the defendant who otherwise had no record of prior adverse safety-related incidents over his thirty year driving history. His Honour accepted a submission that the defendant was devastated by the incident and took note that the defendant was clearly distressed during the sentence proceedings.
In determining that no conviction ought to be recorded, his Honour took into account the matters in mitigation, as well as the potential ramifications that a recording of a conviction may have for the defendant.
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Sections 28 and 32 of the Work Health and Safety Act 2011