On 24 August 2020, a sheet metal fabrication business and its director pleaded guilty and were sentenced in the Beenleigh Magistrates Court for Category 2 offences under s 32 of the Work Health and Safety Act 2011 (the ‘Act’). The defendants breached the safety duties they held under ss 19(1) and 27(1) of the Work Health and Safety Act 2011 (the ‘Act’) respectively. The incident resulted in injuries to a 15-year-old child.

The defendant company operated from a premises at Luscombe and had engaged the 15-year-old to undertake work experience. On 25 September 2018, the student was at the workplace operating an up-stroking hydraulic brake-press machine to flatten metal. The tip of the child’s right middle finger was within the opening of the press when it was accidentally operated, resulting in amputation of the tip of the child’s right middle finger.

A subsequent investigation by Work Health and Safety Queensland (‘WHSQ’) found the gap in the machine allowed for the hand or finger of the worker to enter when it was in operation, the closing speed of the brake press didn’t allow sufficient time for a worker to react and remove body parts prior to closure and the laser safe system, which would have prevented operation if there was an obstruction, had been disengaged.

The defendant company’s director cooperated with WHSQ’s investigation and participated in an interview. Post-incident, the company modified the brake press to avoid reoccurrence of the incident.

The defendant company failed to ensure workers, including the child, were safe while they were at work at the business and had failed to ensure plant was without risk to workers.

The defendant director failed to exercise due diligence to ensure that the company complied with its health and safety duty, including that it have available for use and did use appropriate resources and processes to eliminate or minimize risks to health and safety from the work it carried out.

In sentencing the defendants, Magistrate Shephard accepted that the laser safe device had not been deliberately deactivated, but rather had been switched off as a result of requirement of previous use of the machine. Her Honour accepted that the failure by the defendants did not fall into the category of them being “cavalier” or “callous” in relation to the duties they owed.

Her Honour indicated she had regard to the permanent injury caused to the child, the detipping of the child’s right middle finger, and the ongoing pain, sensitivity and limitations suffered by the child as a result of the injury as outlined in the victim impact statement.

The Magistrate indicated she had regard to matters of mitigation including regret for the incident outlined in the Director’s affidavit, the cooperation with the investigation, the significant steps taken to ensure the incident didn’t reoccur and that neither defendant had history of previous offending against the Act. The defendant company had been operating for a period of 40 years and her Honour accepted it was a small company.

Her Honour referred to Reynolds and Tailored Adventures Pty Ltd [2019] QDC 150, and noted that the offending there was more serious with greater risk to members of the public.

Her Honour accepted the imposition of a fine against the company would be borne directly by the director who was also charged and the totality principle required consideration of that impact in imposing penalty.

In relation to the company her Honour imposed a fine of $40,000 with no conviction recorded.

In relation to that company’s director a two-year undertaking pursuant to s 239 of the Act was ordered with no conviction recorded.

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

Court Report

General
Industry
Manufacturing
Date of offence
Injury
Amputation
Court
Beenleigh District Court
Magistrate or judge
Magistrate L Shephard
Decision date
Company
Legislation

Sections 19(1) and 32 Work Health and Safety Act 2011

Plea
Guilty
Penalty
Fined $40,000
Maximum fine available
$1,500,000
Professional and legal costs
$750
Court costs
$99.70
In default period to pay
Referred to SPER
Conviction recorded
No
Director
Legislation

Sections 27(1) and 32 Work Health and Safety Act 2011

Plea
Guilty
Penalty
Two year undertaking pursuant to s 239 of the WHS Act 2011
Maximum fine available
$300,000
Professional and legal costs
$750
Court costs
$99.70
In default period to pay
Referred to SPER
Conviction recorded
No