On 16 November 2020, in the Pine Rivers Magistrates Court, the defendant, a not-for-profit registered charity, pleaded guilty to one offence contrary to section 32 of the Work Health and Safety Act 2011 (‘Act’), for failing to comply with their duty under section 19(2) of the Act. Magistrate Melanie Ho fined the defendant $300,000 and did not record a conviction.
On the evening of 26 September 2017, a 15-year-old patron attended the defendant’s Pine Rivers branch, unaccompanied by a parent or guardian. The child was greeted by a staff member at reception, before entering the gym area, where no one else was present. The child began using a piece of weights equipment known as a Smith Machine to perform bench presses. The Smith Machine was comprised of a bar which ran up and down rails on each side of the bar.
The child increased the combined total weight to 90 kilograms. He lifted the bar but was unable to support it. The bar dropped onto his neck, pinning him to the bench. The design of the Smith Machine was such that it was not possible for the child to roll the bar off himself. He was located by another patron approximately 20 minutes later.
The child was transported to hospital by ambulance and, on 30 September 2017, he died as a result of his injuries.
The Workplace Health and Safety Queensland investigation found that, at the time of the incident, the defendant had a policy that patrons aged between 12 to 15 years old were required to be accompanied by a parent or guardian at all times whilst within the gym. The investigation revealed that staff knowledge and training on this policy was deficient, and the policy was not sufficiently enforced, despite the need to do so being communicated to the branch. Furthermore, the point of entry system at reception was deficient in that it did not make the age of a patron immediately apparent to reception staff.
Subsequent to the incident, the defendant installed swipe access doors, which determined whether a person was of sufficient age to permit them entry without supervision.
In sentencing, Magistrate Ho had regard to the victim impact statements of the deceased’s parents, accepting that both parents had suffered, and continued to suffer, profound grief.
Her Honour took into account the defendant’s early plea and cooperation with the investigation. Her Honour noted that the defendant had a relevant policy, but that training and information in relation to it were deficient and that there were insufficient measures to ensure compliance. Her Honour commented that the defendant had delayed implementation or enforcement of appropriate controls for approximately 18 months and instead relied on reception staff to identify the age of children, where they were focussed on numerous other tasks, were not alerted about a patron’s age, and were not provided with appropriate tools and training on the policy.
Her Honour took into account the nature of the risk, the degree of likelihood of the risk occurring and the steps taken to ensure there would be no reoccurrence.
Her Honour acknowledged that the defendant had conceded the tragedy of the situation and determined that remorse was demonstrated by their early guilty plea and cooperation, which also saved significant time and resources. Her Honour considered that remorse was also shown by the defendant’s post incident steps in immediately closing the gym (until February 2019) and removing Smith Machines from their 39 gyms within 7 days, at significant cost. Her Honour took into account the other steps taken to protect the public, including over $800,000 committed to improvements, gym security updates across all branches, and further training and guidance to staff on policies for children under 16 years old. Her Honour accepted that the defendant was a good corporate citizen with no prior convictions.
When considering the penalty to be imposed, her Honour determined that proper weight should be given to the defendant’s failure to take sufficient steps to ensure the health and safety of members of the public. Her Honour also had regard to the legislative framework and the aims of the WHS Act.
Her Honour stated that general deterrence was an important component of the sentence to send a message to employers and businesses, particularly those working with children, that this was a very serious matter. Her Honour also considered that denunciation was relevant and that a significant penalty was necessary to show the community’s condemnation of such conduct. Her Honour took into account the maximum penalty for the offence and referred to the harm done to parents and friends. Her Honour commented that the defendant was solely to blame, including for the acts and omissions of its staff. Her Honour noted that the defendant is a not-for-profit organisation and a large organisation that provides services targeted at children and young people. Her Honour observed that those placed at risk were members of the public under the age of 16 years old.
Her Honour considered that the aggravating factors of the offending were that the gym was a potential risk to unsupervised children, the defendant should have foreseen the potential for catastrophe, noting the defendant had previously identified the high probability of risk, and a lack of clear instruction to management and staff. Her Honour commented that the steps that could have been taken to remedy the risk were neither complex nor burdensome.
Magistrate Ho took into account the defendant’s financial circumstances, noting that they had capacity to pay. Her Honour had regard to the comparable cases and noted that no convictions were recorded. Her Honour exercised her discretion, under s12 of the Penalties and Sentences Act 1992, not to record a conviction and imposed a fine in the sum of $300,000.
OWHSP contact: email@example.com
Section 19(1) (duty) and section 32 (offence) Work Health and Safety Act 2011