On 4 June 2024, the owner of a business pleaded guilty to a ‘Category 2’ offence contrary to s.32 of the Work Health and Safety Act 2011 (‘the WHS Act’).

The defendant, as a supplier of plant, had a duty to ensure plant was without risk to the health and safety of persons who use it for a purpose for which it was designed, and that failure exposed an individual to a risk of death or serious injury or illness.

The defendant as an individual, had operated a business in Toowoomba for approximately 10 years.

The defendant owned a ‘scissor lift’ elevating work platform (the EWP). The defendant supplied the EWP to a Toowoomba school (the school), free of charge, for its use on a date unknown between 10 December 2021 and 7 January 2022.

Prior to delivery, the EWP had not been examined or inspected to ensure that it was without risk to any workers who may operate it.

On 7 January 2022, a school maintenance worker was tasked to repair a strip of metal flashing which was approximately 3 metres above ground on the walls of the Indoor Sports Centre at the School, working from the EWP.

As he was working alone from the elevated platform of the EWP on the northern wall something occurred which caused the EWP to contact the wall and fall onto its side. The worker fell from the platform of the EWP and his head struck the ground.

He was subsequently found unconscious on the floor, and subsequently died in hospital on 17 January 2022.

The EWP was examined, which revealed that the likely primary cause of the incident was that the speed limiting device had been disabled through application of grey gaffer/electrical tape which meant the EWP could operate at full speed when the platform was raised.

Secondary defects arising from a failure by the defendant to have in place a system of periodic inspection and maintenance were:

  • The hydraulic ram used to raise and lower the working platform was leaking, which would cause the working platform to slowly creep down.
  • The joystick controller was not functioning properly which resulted in the EWP moving forward, back or up when “dead-man” is depressed, before the joystick is moved out of neutral position.
  • The wheels of the EWP had chunks of the rubber missing from the outside shoulder.

It was conceded by the prosecution that:

  • The precise causation of the incident was unknown due to an absence of witnesses;
  • There was no evidence that the defendant knew of the disabling of the speed limiting switch;
  • That this action had been undertaken prior to the supply of the EWP by the defendant to TCC; and
  • That the offence was formed by the exposure of workers to risk of death or serious injury by the failure of the defendant to have in place a system of regular periodic inspection and maintenance in accordance with the manufacturer’s instructions, to identify potential safety defects in the EWP.

The magistrate applied the principles set down in Nash v Silver City Drilling (NSW) Pty Ltd [2017 NSWCCA 96, accepting the prosecution submission that the offending was in the mid-range of objective gravity.

It was the first offence committed by the defendant, and he had co-operated with the investigation and had entered a guilty plea. The court accepted he was a person of exemplary character, having regard to 11 references tendered by the defence.

The magistrate took into account that the defendant has only recently been able to return to work following treatment for leukemia, which was diagnosed shortly after the incident in 2022.

The magistrate considered a number of previous decisions including the sentence of a fine of $200,000 imposed on the school in December 2023.

While his Honour accepted that the defendant may have a lower degree of culpability than the school, the need for general deterrence to suppliers of plant warranted the imposition of a fine of $40,000.

No conviction was record against the defendant.

The defendant was also ordered to pay legal costs and court fees of $1601.40.

OWHSP contact:enquiries@owhsp.qld.gov.au

Court Report

General
Industry
Education and training
Date of offence
Injury
Fatality
Court
Toowoomba Magistrates Court
Magistrate or judge
Magistrate Mark Howden
Decision date
Company
Legislation

Sections 25 and 32 of the Work Health and Safety Act 2011

Plea
Guilty
Penalty
$40,000 fine
Maximum fine available
$300,000
Professional and legal costs
$1,500
Court costs
$101.40
In default period
N/A
Time to pay
Referred to SPER
Conviction recorded
No