On 2 November 2020, the defendant, an incorporated not-for-profit association, pleaded guilty and was sentenced in the Pine Rivers Magistrates Court for failing to comply with its primary work health and safety duty held under section 19(2) of the Work Health and Safety Act 2011 (‘Act’). The failure exposed an individual to a risk of death or serious injury in contravention of section 32 of the Act. Magistrate Trevor Morgan imposed a fine of $100,000 and no conviction was recorded.
The defendant owned and operated a primary school in Mango Hill. The defendant employed a groundskeeper who was required to maintain the outdoor areas of the school. The groundskeeper used a golf cart as part of his duties, which the defendant had purchased in February 2013.
On 14 February 2018, the groundskeeper was driving the golf cart on a concrete pathway adjacent to a toilet block. A six-year old student ran from the toilet block into the path of the cart, the front of which struck him. The child sustained injuries including subdural haemorrhage, fractured left tibia and damage to his left fibula, and was hospitalized for treatment for those injuries. The defendant had failed to take any steps to mitigate the risk posed by the golf cart's operation within the school.
In sentencing, Magistrate Morgan observed that the golf cart’s presence as mobile plant around primary school aged children posed an obvious risk if not managed appropriately, and accepted there was a clear need to conduct a safety assessment and implement plans regarding the use of the cart. His Honour observed the significant injuries caused to the six-year-old student, noting that he was hospitalised for at least five days and was unable to return to school until a week after his release from hospital.
When considering the penalty to be imposed, Magistrate Morgan had regard to the legislative framework and the general sentencing discretions, including the defendant’s early plea. His Honour also considered that general deterrence was relevant to send a message to the community and other enterprises that failure to comply with work health safety obligations would result in a significant penalty.
In mitigation, His Honour took into account the defendant’s timely post-incident measures, as an indication of clear and appropriate remorse. For this reason, his Honour determined that specific deterrence was not applicable, but accepted that too much emphasis should not be placed on post-incident steps as the legislature imposes a positive duty.
His Honour observed that defendant was a not-for-profit organisation, a large enterprise, it managed 144 schools, and its predominant role in the community needed to be weighed in balance.
His Honour commented on the maximum penalty as a reflection of the seriousness with which the parliament and community regard the failure to comply with that duty. Magistrate Morgan indicated the serious consequences arising from the defendant’s failure, the seriousness of the victim’s injuries and victim was seriously injured and observed that it was not surprising the child incurred significant and painful episodes of physical and psychological rehabilitation.
Magistrate Morgan also accepted the defendant’s cooperation with the prosecution was a mitigating factor, although indicated the defendant’s culpability was quite significant. His Honour held there was a risk of clear injury arising from the operation of mobile plant near very young children, which manifested itself and was “abundantly foreseeable.” His Honour indicated that the defendant’s lack of awareness of the risk was significant, noting that it was evidence of an explanation for the omission rather than an excuse for it.
Magistrate Morgan indicated the potential consequences in this case warranted steps to be taken by the defendant, and those steps could have been taken without substantial cost and mild inconvenience.
Magistrate Morgan considered the case a serious omission on the part of the defendant. His Honour found principles from a large number of authorities relied upon by the parties which assisted his exercise of discretion, however, noted that none were factually comparable.
When considering whether a conviction should be recorded, his Honour had regard to the objective seriousness of the defendant’s conduct, its prior and subsequent conduct, and that it was generally a model citizen. Magistrate Morgan declined to record a conviction.
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Sections 19(2) and 32 – Work Health and Safety Act 2011