On 15 March 2024, a metal fabrication company was sentenced in the Brisbane Magistrates Court for breaching section 19 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty.

The defendant was a company who built metal products including lifting attachments and material handling equipment. On 13 October 2021, the injured worker was at the worksite helping another worker make up some support beams. Both workers operated a hydraulic porta-power pack (“porta-power”) to push the ends of the beams to get the correct length dimensions.

The injured worker was kneeling down using the handle to pump the porta-power with a length of square hollow steel (“SHS”), weighing approximately 40-50 kg, as an extension bar. The SHS sprung out and hit the injured worker to the face, knocking him to the floor.

The injured worker was unresponsive for approximately five seconds. He was taken by ambulance to hospital and was found to have suffered a fractured cranium consisting of a non-displaced linear skull fracture through the left frontal bone as well as a left frontal subgalea haematoma and left periorbital haematoma. He spent one night in hospital and later returned for overnight observation after fluid discharge from his nose.

The defendant had not developed a safe operating procedure for using the porta-power. There was no process to use the manufacturer attachments or to ensure the workshop-developed attachment had controls in place to prevent the material from being ejected when using the porta-power.  There was also no requirement in place for an exclusion zone.

The failure to implement controls relating to the operation of the porta-power meant that the defendant contravened its duty to ensure the health and safety of its workers and thereby exposed them to a risk of death or serious injury.

In sentencing, Magistrate Pinder had reference to the statement of facts and the CCTV shown which was described as ‘concerning’. It was noted that the incident involving the injured worker was serious and the process adopted produced a risk which was obvious and foreseeable.

His Honour noted that the defendant company had no previous convictions in relation the breaches of relevant WHS legislation and that the defendant company has since been appropriately managing WHS risks. It was also mentioned that the defendant company was not in any way blasé in relation to the offending, it was cognizant of its obligations and that was evident in their early communication and cooperation with WHS Investigations.

His Honour acknowledged that the defendant was a good corporate citizen and that this incident was an important and significant blemish on their otherwise perfect history. His Honour had reference to the relevant considerations of the Penalties and Sentences Act 1992, and with regard to defence counsel’s submissions in terms of mitigation noted that rehabilitation was not a necessary feature for consideration here and that the penalty would be significantly moderated.

His Honour acknowledged that the comparable matters provided were more serious and noted that the starting point for the penalty range was up to $100,000. However, due to the number of features to the defendant’s credit the penalty would be moderated significantly.

As such Magistrate Pinder convicted and fined the defendant company $70,000 along with payment of costs, the fine was referred to SPER. His Honour exercised his discretion to not record a conviction.  

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