On 20 June 2023, a partner in an unincorporated partnership, which ran a business which provided elevated work platforms (EWPs) and operators for hire, was sentenced in the Townsville Magistrates Court. The defendant was fined in relation to two offences; the first offence related to a breach of section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his duty to ensure that plant was without risks to the health and safety of any person, the second offence related to a failure to advise Workplace Health and Safety Queensland of a notifiable incident, pursuant to section 38(1) of the Act. The defendant was fined a total of $12,000.
The business had been engaged a tree lopping business to provide an EWP and operator. The EWP was required so as to access areas of trees which required trimming. The EWP which was provided was in poor condition. It had not been regularly maintained as required. An inspection of the EWP post incident revealed a number of issues which would have been identified in routine inspections.
The defendant failed his duty to ensure the EWP was without risks to the health and safety of any person. Any person who was raised in the bucket of the EWP, while it was in this poor condition, was exposed to the risk of death or serious injury from a fall from height. Control measures the defendant could have reasonably implemented to eliminate or minimise the risk included:
On 28 July 2021, the EWP, an operator and workers from the tree lopping business were at the incident address. One worker from the tree-lopping business (‘the injured person’) was in the bucket of the EWP, while the boom was raised, and was using a chainsaw to trim trees. The injured person was wearing a harness which was attached to an anchor point on the bucket of the EWP initially, however, it is unclear whether he detached the harness from the anchor point after the boom had been raised.
While the bucket was raised, the injured person fell from a height of approximately six meters, landing on the ground below. He sustained a number of injuries and required multiple surgeries. Due to the inability to exclude that Mr Wilson did not detach himself from the anchor point after the boom had been raised, it was not alleged that the breach of duty by the defendant caused the injuries sustained by the injured person.
The defendant failed to notify Workplace Health and Safety Queensland of the incident.
In sentencing, Magistrate Smid took into account the defendant’s plea of guilty and lack of prior convictions.
His Honour noted that the breaches in this matter were blatant and numerous. His Honour indicated that this matter was unusual as the injuries were not attributed to the deficiencies which had been outlined.
His Honour had regard to the guiding sentencing principles as placed before him, and the cases referred to by both parties. His Honour indicated that there was very little guidance due to the injuries not being attributable to the deficiencies. His Honour considered that the matter of Fletcher v Timevale provided some guidance, however noted that that matter did not involve blatant deficiencies as there were in the current matter, and the maximum penalty in that matter was more than in the current matter.
His Honour imposed a fine of $10,000 for charge 1, and $2,000 for charge 2. His Honour exercised his discretion to not record convictions.
OWHSP contact: email@example.com
Charge 1: Sections 21(2) and 32 of the Work Health and Safety Act 2011. Charge 2: Section 38(1) of the Work Health and Safety Act 2011.