On 17 November 2020, the defendant was sentenced in the Holland Park Magistrates Court for failing to comply with his duty as a worker to ensure that his actions did not adversely affect the health and safety of others, held under s 28(b) of the Work Health and Safety Act 2011 (‘Act’). This failure exposed an individual to a risk of death or serious injury, in contravention of s 32 of the Act. Acting Magistrate Robert Turra imposed a fine of $3,000 and no conviction was recorded.
The defendant was a worker employed by a company that operated a wholesale fruit and vegetable sales business at Rocklea. On the date of the incident, a worker and the defendant, who was operating a forklift, were preparing sales orders to be loaded onto transport. The worker sustained compound fractures to his left leg when he was struck by the reversing forklift operated by the defendant.
The investigation by Workplace Health and Safety Queensland (WHSQ) revealed that the process for this task was not formalised or documented. The ‘usual’ process as described for the task was that the worker who was not operating the forklift would open the door to the cold room and stand by the open door and act as a ‘spotter,’ while the forklift operator drove into the cold room. On the date of the incident, the injured worker departed from the ‘usual’ procedure and stood in the ‘shared zone’ outside the pedestrian line markings. The defendant failed to look behind him while he was reversing out of the cold room and failed to manoeuvre the forklift to avoid hitting the worker.
In sentencing, Acting Magistrate Turra considered the principles in s 9 of the Penalties and Sentences Act 1992, as applied in Steward v Mac Plant and Mac Plant Farms Pty Ltd, and gave significant weight to general deterrence. His Honour commented that a significant penalty would send a message to others in the industry that work health and safety failures are treated seriously by the courts, as plant machinery injuries arising from poorly controlled workplaces can be catastrophic. His Honour also determined that the injured worker’s departure from the ‘usual’ process reduced the defendant’s culpability.
His Honour had regard to the maximum penalty for individuals being $150,000, noting that sum was approximately one tenth of the maximum amount for corporate liability. In mitigation, His Honour took into account the defendant’s early guilty plea, which he commented demonstrated remorse and a willingness to facilitate the course of justice. His Honour also considered the defendant’s antecedents, namely, that he was 46 years old and married with two children, his good character and his lack of criminal history. His Honour commented that the defendant’s failure amounted to a brief lapse of concentration where he failed to look behind him. However, he noted that even momentary inattention can result in drastic consequences. Acting Magistrate Turra accepted the negative impact of the proceedings on the defendant, that the defendant had apologized to the injured person and that they remain friends following the incident.
His Honour took into account the defendant’s capacity to pay the fine and held that the proposed fine did not place an undue burden on the defendant but provided sufficient personal deterrence so that he was made accountable for causing a serious injury.
OWHSP contact: firstname.lastname@example.org
Section 28(b) (duty) and section 32 (offence) Work Health and Safety Act 2011