On 17 November 2023, a facilities manager of a commercial high-rise building in Brisbane’s CBD was sentenced in the Brisbane Magistrates Court for breaching section 32 of 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 had been employed for over 10 years as the facilities manager of the building. He failed to take reasonable care that his acts or omissions did not affect the health and safety of others. The charges stem from a tragic incident on 17 May 2022, when 80-year-old Mr Bruce Johnston attended the building to meet with his accountant. He proceeded to level 4 and asked the receptionist if he could use the bathroom, and unfortunately never returned. The following day, after he had not returned home and his family raised alarms, Mr Johnston was found, deceased, in a ‘disused stairwell’ near the reception.

At the building, there is an internal staircase between level 3 and level 4, as the same tenants previously occupied both floors. However, around 2016, when those tenants vacated, there was no longer a need for interconnecting floors, so the entry/exit on level 3 was covered over with a plasterboard wall. The entry to the internal staircase on level 4 is in an alcove near the lifts, which has 3 doors. On the left is a door to a male toilet, on the right is a door to a unisex toilet, and in the centre is a door which, at the time, had an A4 laminated sign attached to it which read “No Exit.” The sign for the male bathroom was affixed to the same wall as this door. It is this door which leads through a small landing to another door, which is how access to the ‘disused stairwell’ is obtained. The ‘disused stairwell’ comprises a flight of 11 steps (on a downward curve), then a mid-landing, then a further 14 steps to the plasterboard wall on level 3.

Significantly, on three previous occasions between 2020 and 2021, individuals had been trapped in the disused stairwell. The door to it contained an automatic locking device, meaning that once an individual entered, and the door closed behind them, they could not get out. The defendant knew about two of the entrapments, on 21 and 23 September 2021, but, despite his role and responsibility within the building, did nothing to remedy the hazard, nor report the entrapments to his employer, as required. Ultimately, one of the trapped contractors (on 23 September 2021) had to use a crowbar to pry the door open. Rather than take steps to address the hazard and escalate or otherwise report the entrapments (well within his purview as facilities manager), the defendant instead appeared angry about the damage to the door, in fact emailing the boss of the contractor, stating it was unacceptable and demanding to know how it would get fixed.

The tragic death of Mr Johnston occurred just under eight months after the last two entrapments, which the defendant knew about. The defendant was responsible for the management and maintenance of the disused stairwell, which was hazardous in that it posed a risk to the health and safety of staff or visitors to the building, if they opened the door and fell down the stairwell and/or became entrapped. The potential consequences of the risk included death or serious injury. The foreseeable event did occur, with catastrophic consequences. The death of Mr Johnston has had a profound impact on his family.

Post-incident, at a cost of around $3,000, signage was placed on the level 4 door to the disused stairwell, dead bolts were installed on the doors together with a sensor, the locking mechanism was changed so it was no longer self-locking, and proper lighting was installed in the disused stairwell.

A Workplace Health and Safety investigation commenced following the incident. The defendant cooperated, and voluntarily participated in a recorded interview with investigators, where he was remorseful and made many candid admissions. In sentencing, Magistrate Pinder recognised that the plea of guilty was at the earliest possible opportunity and that the defendant had cooperated fully and expressed significant remorse, and was of otherwise good character. His Honour remarked that the photographs were illuminating, and that it was easy to see how one could be confused as to the entry. In determining the objective seriousness of the offending, his Honour noted the potential consequences, the obvious probability (and that the defendant was readily on notice given the previous entrapments) and that the risk was effectively eliminated almost immediately post-incident, and at small cost. His Honour also had regard to the purposes of sentencing, stating the importance of general deterrence, particularly where members of the public could access the hazard. Having regard to all matters, including the sentencing comparatives places before him, as well as the matters outlined in the Penalties and Sentences Act 1992, his Honour fined the defendant $30,000 and exercised his discretion to not record a conviction.

At the conclusion of the sentence, Magistrate Pinder addressed the family of the deceased, explaining that the quantum of the fine does not remotely reflect their loss, which must be immeasurable.

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

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