On 25 June 2021, in the Brisbane District Court, her Honour Judge Loury QC dismissed appeals brought by the defendant company and its sole director against convictions imposed on 7 December 2020. The defendants had both pleaded not guilty. After a hearing, they were each found guilty of offences pursuant to section 32 of the Work Health and Safety Act 2011 (‘the Act’) for failing to comply with a health and safety duty and exposing other to a risk of serious injury or death. The defendant company failed to comply with its duty under section 19(1) of the Act to ensure the health and safety of workers it engaged or whose activities it directed or influenced. The director of the defendant company failed to comply with his duty under section 27(1) of the Act to exercise due diligence to ensure the defendant company complied with its duty under the Act.

A principal contractor engaged another company to provide the flooring system as part of the construction of a unit complex in West End, and together they prepared a Safe Work Method Statement (‘SWMS’) for installation of the flooring system. The subcontractor engaged the defendant company to install the flooring system, which involved laying both the concrete beams and infill boards to act as formwork for the concrete pour. On 27 February 2018, the aforementioned SWMS was reviewed and signed by the subcontractor and defendant company through its director. The SWMS did not address the hazard of penetrations in the work to be completed by the defendant company. The subcontractor provided plans to the defendant company indicating the location of the beams to be placed and penetrations.

On the first level above ground (Level 1) a penetration for a garbage chute was constructed through the work completed by the defendant company including by labour hire workers it had engaged. This penetration measured 615mm wide and 780mm long. On or around 7 March 2019, this penetration was identified by the workers who covered it with two of the infill boards as a control with the words “peno no standing” and “no standing peno” written on it. On this date, several of the company’s employees and labour hire workers were performing installation work on Level 1 with the defendants’ employees supervising and directing the labour hire workers. One labour hire worker was working in close proximity to the penetration and stepped backwards onto the infill boards covering it. The worker broke the boards and fell through the penetration approximately 3 metres to the level below. The penetration on that level had been covered with plywood. The worker sustained spinal injuries.

On 18 December 2020, the defendants were sentenced for the offending in the Brisbane Magistrates Court. In sentencing, Magistrate Gilbert noted general deterrence was relevant, as companies and their directors must comply with their health and safety duties, as was denunciation to demonstrate the community’s condemnation. Her Honour found the defendant company had failed to address an obvious risk they were aware of and could control. This factor was considered aggravated as the defendants had previously undertaken similar work, the hazard was outlined in the Managing risks of falls at workplaces Code of Practice 2018, and the hazard was indicated on the plans provided. Her Honour also took into account the victim’s statement as to impact of the offending and the seriousness of his injuries, which she observed created ongoing difficulties even 2.5 years post incident. In mitigation, Her Honour had regard to the defendants’ good character demonstrated by personal references, lack of prior convictions and their quick resolution of the incident. Magistrate Gilbert imposed fines of $90,000 on the defendant company and $8,000 director with no convictions recorded.

On 4 January 2021 the defendants filed appeals against their convictions which were heard by her Honour Judge Loury QC on 21 May 2021. The defendants contended that the magistrate erred in finding the defendant company owed a duty or alternatively, if a duty was held, that the defendant company did not fail to discharge its duty. Furthermore, it was also argued that the specified control measures were not reasonably practicable and that the defendant director did not fail to discharge his duty.

Judge Loury QC dismissed the appeal with reasons on 25 June 2021. Her Honour found there was no error made by the Magistrate in her finding the defendant company and director guilty of each offence. Her Honour rejected the argument of the defendant company that to establish a duty under this provision, the person must have both engaged the worker and influenced or directed them. Her Honour held it was only necessary to establish one of those matters. Her Honour also found the evidence supported that the control measures particularised by the prosecution could have been implemented by the defendant to address the risk of a fall through a penetration.

Her Honour dismissed the appeal and awarded appeal costs of $2,100 to the prosecution. No convictions were recorded.

The published decision can be found at: https://www.sclqld.org.au/caselaw/QDC/2021/124.

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