On 20 October 2023, a company was sentenced in the Toowoomba Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to comply with its primary health and safety duty, thereby exposing workers to the risk of death or serious injury.
The defendant owned and operated a primary and secondary school at Toowoomba. As part of its business or undertaking the defendant employed workers, including a groundskeeper who, as part of his role, was required to undertake maintenance of school equipment and building structures.
On a date unknown between 10 December 2021 and 7 January 2022 the Defendant requested and received a mobile elevating work platform (‘EWP’) from an independent contractor. On 7 January 2022 the groundskeeper was at work and was tasked to operate the EWP to repair a strip of metal flashing at a height of approximately three (3) metres along an interior wall of an Indoor Sports Centre at the school. The work was hazardous in that it posed risk to the health and safety of workers, namely the possibility of death or serious injury to workers if they were crushed from the operation of the EWP or the EWP falling, overturning or colliding with items or structures.
The defendant failed to implement a pre-operation inspection procedure for the EWP to ensure it was inspected prior to use as well as a safe operation procedure for the EWP which identified all potential hazards.
As the groundskeeper was working 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 groundskeeper fell from the platform of the EWP and his head struck the ground.
Workers contacted 000 and rendered first aid under the guidance of the operator until paramedics arrived. The groundskeeper was transported to Princess Alexandra Hospital where he was assessed and found to have a traumatic brain injury and a large laceration to the right side of head. He was treated in the Intensive Care Unit and neurological wards but did not regain consciousness. On 3 March 2022 he was transferred to the Toowoomba Base Hospital for palliation and passed away on 17 March 2022.
The EWP was examined following the incident, which identified several defects, including 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, issues with the function of the joystick, and that the wheels of the EWP had chunks of rubber missing.
In sentencing the defendant, Magistrate Kelly took into account the defendant’s plea of guilty, which was entered at the earliest opportunity, as an indication of genuine remorse. Her Honour took into account the maximum penalty of $1.5m as well as the facts and circumstances of the offending.
Her Honour had regard to the substantial post-incident safety measures taken by the defendant, which were far-reaching and implemented at significant cost. Her Honour also noted a number of references placed before the Court outlining the defendant’s good character and the high level of assistance and care, including financial assistance, that the defendant provided to the deceased worker’s family following the incident. Having regard to those matters, as well as the defendant’s lack of prior convictions, her Honour considered that specific deterrence was of lesser application in the circumstances of this matter.
Her Honour had regard to the principle that workplace safety requires employers to take the obligations imposed by the Act very seriously and that the community is entitled to expect that employers will comply with safety requirements. Her Honour considered that general deterrence remained a significant sentencing factor when safety obligations are breached.
Her Honour took into account the factors outlined in section 9 of the Penalties and Sentences Act 1992. Considering all matters and the circumstances of the offending, her Honour fined the defendant $200,000 and exercised her discretion not to record a conviction.
OWHSP contact: firstname.lastname@example.org
Sections 19(1) and 32 of the Work Health and Safety Act 2011