On 28 September 2022, a 49-year-old worker was found guilty by a jury in the Brisbane District Court for breaching section 31 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty pursuant to section 28 of the Act. The following day, on 29 September 2022, Judge Cash KC sentenced the worker to four months’ imprisonment, which he wholly suspended for an operational period of four months.
The worker was employed as a labourer by a company that had been subcontracted to perform some drilling into a concrete wall as part of a larger job of installing air conditioning units into newly built school buildings. On 30 June 2020, the worker was onsite working. His job required the use of an Elevated Work Platform (EWP) because the holes needed to be drilled into the upper level of the exterior of the building. The worker was an experienced concrete driller who was appropriately licensed to operate the EWP and to perform the job he was doing on the day.
The EWP belonged to another company (‘the air conditioning contractor’) who had been contracted to install the air conditioning units. For that reason, an apprentice (‘the apprentice’) of the air conditioning contractor drove the EWP and set it up for the defendant in the location below where the first concrete hole needed to be drilled. Once the EWP was in position, the apprentice got out of it and the worker went in. He raised it to the level required and drilled the first hole. The process of concrete drilling produced a piece of concrete waste (‘concrete billet’) that weighed just over 6kg. Having drilled the first hole, the worker lowered the EWP back down to the ground. The apprentice got back into it and drove it about 20 metres to the location of the next hole and set it up in place for the worker, who got into it and raised it to the level where he was to drill the next hole, which was about 6 metres above ground level.
There were a number of people walking around in the vicinity of where the worker was operating the EWP. The worker had a short conversation with one of them, engaging in ‘banter’ about not wearing hard hats. The worker grinned and lobbed or threw the concrete billet from where he was positioned in the EWP in the general direction towards where the other workers were standing. The apprentice was struck on the head by the concrete billet, felling him to the ground. He sustained a serious head injury, including a fractured skull, bleeding on the brain, a serious head laceration, black eye, damage to sinus cavity, chipped teeth and bruising to his shoulder and collarbone.
The matter proceeded to a trial over three days in the Brisbane District Court, commencing on 26 September 2022. On 28 September 2022, the jury returned a guilty verdict. In sentencing, His Honour Judge Cash KC took into account the circumstances of the offending, including that the defendant had lobbed heavy concrete from the EWP and struck a worker, causing serious injuries, and that he had been convicted by the jury of reckless conduct, together with the nature of the conduct, involving both an awareness of the risk and recklessness.
Overall, balancing the relevant considerations, His Honour found that general deterrence was the major consideration, to indicate to others that choose to engage in this kind of conduct that serious consequences follow. The worker was sentenced to imprisonment for four months, which his Honour ordered be wholly suspended for an operational period of four months. A conviction was recorded.
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Section 28 and 31 of the Work Health and Safety Act 2011