On 13 September 2021, a residential care worker was sentenced in the Bundaberg Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty as a worker pursuant to section 28 of the Act.
The defendant was employed in a high-needs residential care facility in Bundaberg. On 9 October 2018, he was working alone in that facility caring for three high-needs residents, who were each entirely dependent on assistance from their carers at all times. Earlier that afternoon, the defendant performed several care tasks for one resident which required him to lower the siderails on the resident’s bed. The resident was non-verbal and unable to communicate freely, relying instead on hand and arm gestures. Carers were instructed that siderails were to remain in the raised position unless the activities undertaken necessitated the siderails to be lowered. However, upon completing the tasks, the defendant failed to raise the siderails as required.
At around 9:30pm, the defendant entered the resident’s room and observed him on the floor. The siderails were in the lowered position and the resident had fallen approximately one metre from his bed. The defendant picked up the resident, placed him into his bed and raised the siderails. The defendant finished his shift at 10:00pm and did not advise the oncoming shift worker that the resident had fallen nor did the defendant record the incident in the daily running sheet.
The following morning the on-coming morning shift worker was concerned for the resident, who appeared to be agitated and in extreme pain, and called an ambulance to transport the resident to hospital for treatment. That worker contacted the defendant to enquire if an incident had occurred during his shift and the defendant revealed the incident of the resident falling the evening before. The resident suffered significant injuries with fractures to both pelvis and further fractures to his leg, for which he received medical treatment.
In sentencing, Magistrate Moloney took into account the facts and referred to the victim impact statement authored by the parents. It was clear from this that the resident had suffered significant and serious injuries as a result of the defendant failing to raise the siderails on the bed and the suffering was aggravated by his failure to report the matter and seek medical treatment for the resident.
His Honour said that he did not know why the defendant did not seek medical assistance, and after hearing submissions from the defendant’s counsel this was still unexplained. He accepted the prosecution’s submission that the failure to report the incident was an aggravating factor he was required to take into account when determining an appropriate penalty. He accepted the worker was very experienced and would have known of the appropriate action to take upon discovering the resident on the floor of his room.
His Honour observed that the resident was non-verbal, and he accepted the prosecution’s submission that because of this he was significantly disadvantaged as he could not convey that he was injured and in pain. His Honour noted that the defendant was in a position where the resident was relying on the defendant for his care and to keep him safe, stating that the sentencing material revealed that the defendant had failed to follow the safe systems of work that the employer had in place.
His Honour stated that any penalty he imposed was required to take into account general deterrence and denunciation of the defendant’s conduct as well as material before him indicating the defendant’s straitened financial circumstances. He noted that the defendant’s personal circumstances needed to be balanced against this breach which was a very serious example of this offence. His Honour convicted and fined the defendant $15,000.
His Honour declined to record a conviction, noting the numerous character references provided by the defendant, though observed the decision was finely balanced.
OWHSP contact: email@example.com
Sections 28 and 32 of the Work Health and Safety Act 2011