On 24 May 2022 a motor dealership company was sentenced in the Maroochydore Magistrates Court by his Honour Magistrate Stjernqvist 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 under section 19. The company was fined $40,000.
The defendant company was involved in the sale and repair of vehicles at a workplace in Maroochydore where they employed a number of workers and apprentices. The defendant owned and managed a Komatsu FG25-7 forklift that was used for a number of purposes including for the transportation of skip bins to and from the kerbside for collection.
Apprentices were tasked with the transportation of the skip bins and one apprentice became the primary forklift operator at the workplace after receiving training from a co-worker. Whilst this co-worker held a forklift licence, they were not authorised to train other persons and the apprentice remained unlicenced.
On 9 June 2020 the forklift operator was preparing to collect the skip bins from the kerbside when he was approached by another apprentice. The other apprentice has intended to assist the forklift operator and has sat on the side of the forklift to travel out to the bins with him.
Both apprentices knew that sitting on the side of the forklift while it was in motion was not permitted and, upon sighting their supervisor walking towards them, the other apprentice has jumped off the forklift before it started moving.
The forklift operator did not notice the other apprentice get down and has started driving, causing the forklift to run up their leg, causing soft tissue damage. The other apprentice was unable to place weight on the injured leg for one week and missed three weeks of work.
Investigations revealed that the defendant had not implemented any forklift-specific safe systems of work or traffic management plans at the workplace. Further, the defendant failed to ensure that forklift operators had appropriate licences and received training, instructions and supervision in the operation of the forklift to ensure that risks to pedestrians were managed.
In determining an appropriate penalty, his Honour had regard to the maximum penalty for the offence and the objectives of the Act. His Honour observed that whilst this incident had uncovered the shortcomings of the defendant’s safety practices and plans, the risk was foreseeable, especially given that the workers involved were young and inexperienced. His Honour indicated that given the steps taken by the defendant post-incident, personal deterrence was not a significant factor to be considered.
His Honour considered it a matter of luck that the injuries suffered were not overly serious, but recognised that the apprentices knew sitting on the side of the forklift was prohibited and had knowingly contributed to the incident.
His Honour considered the decision in Guilfoyle v Wild Breads Pty Ltd  QDC 58 and noted a number of similarities between the decision and the matter before him. Ultimately, however, his Honour considered that this matter was less serious due to the apprentices’ contribution to the incident, the defendant’s lack of previous history, and the significant and quickly implemented steps taken by the defendant after the incident.
In mitigation, his Honour accepted that the defendant misunderstood the requirements of the Work Health and Safety Regulations, believing that the forklift could be operated by unlicenced workers provided they were supervised by another licenced worker. His Honour took into account that the defendant’s early plea of guilty relieved the court and the prosecution of the impost of running a hearing and displayed their cooperation with the administration of justice. His Honour noted that the defendant was an erstwhile employer, and an otherwise outstanding corporate citizen and employer, providing significant support to the community. Accordingly, his Honour determined not to record a conviction against the defendant.
OWHSP contact: email@example.com
Sections 19 and 32 of the Work Health and Safety Act 2011