On 23 September 2021, a food and beverage wholesaler was sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty under section 19(1) of the Act.

The defendant company operates a business involving the distribution of wholesale food, meat and liquor to the foodservice and catering industry across Australia. At the Rockhampton branch, on 24 May 2019, a worker was operating a pallet truck to move a pallet of meat in the freezer area. Another worker entered the freezer area on foot to retrieve an item for a customer. The two workers passed each other in the freezer area and the pallet truck collided with a return stock pallet. The pallet truck and the pallet of meat slid sideways and struck the pedestrian worker, pinning him between the pallet of meat and the guard of a pallet racking shelf. The worker sustained serious injuries to his left foot, ankle and lower leg comprising fibula and ankle fractures and a split heel bone.

The investigation revealed that the defendant company had a traffic management plan in place at the time of the incident in which the freezer area was a shared area that permitted access to pedestrians, pallet movers, forklifts and trucks. The freezer area did not contain physical barriers, line markings or signage to separate pedestrian workers from powered mobile plant. The defendant company was required to control the risk to pedestrian workers from being struck by moving plant at the workplace, including in the freezer area. The defendant company failed to implement control measures to eliminate or minimise the risk to pedestrian workers from the hazard of being struck by mobile plant in the freezer area.

In sentencing, Magistrate Mac Giolla Ri had regard to the seriousness of the offence as set out in the agreed statement of facts and particulars, and to the nature of the business and the fact that the defendant company is a large national company. His Honour took into account the victim impact statement and the substantial effect that the incident has had on the life of the injured worker.

His Honour had particular regard to the defaults of the defendant company and the manner in which the risks could have been eliminated or minimised, noting that they were subsequently remedied by the defendant company. His Honour acknowledged that there were expenses incurred by the defendant company to remedy these defaults post-incident, however considered that these expenses should not lessen the penalty as the systems implemented post-incident should have been implemented at the time of the incident.

His Honour referred to the comments of Scotting DCJ in SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 76 at paragraph 67, namely that the duty holder must account not only for the ideal worker but also for one who is careless or inadvertent. His Honour accepted that the injury was inadvertently caused but found that the material issue was the system of work that was put in place and that this was very much within the power of the defendant to control. His Honour had regard to and applied the principles described in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96.

His Honour noted that the defendant company had no previous convictions for any offences under the Act, despite the fact that the defendant company is a very large entity involved in warehousing. His Honour expected that there would be a lot of work involving mobile plant throughout the branches of the company and considered that the absence of a prior conviction was an indication that the defendant company is a good corporate citizen when it comes to issues of work health and safety.

His Honour had regard to the comparative of Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58 and noted that this decision ultimately allowed him to take harm into account as an aggravating factor. His Honour particularly noted that in the matter of Wild Breads the defendant company had three prior convictions and had no traffic management plan in place, unlike this defendant. His Honour also noted that as Wild Breads was an appeal by the prosecution, Reid DCJ determined the appropriate penalty to be at the lower end of the available range.

His Honour did not consider there was a need to emphasise specific deterrence, noting that the defendant company appeared to be a well-behaved corporate citizen regarding workplace health and safety obligations. The implementation of the remedial action by the defendant company satisfied his Honour that specific deterrence was of lesser importance in the circumstances. His Honour found that denunciation, general deterrence and the harm caused to the victim were all relevant in deciding an appropriate penalty. His Honour also considered that the penalty should acknowledge the fact that the defendant company is a large company with no prior convictions for any breaches of the Act. His Honour imposed a fine of $50,000 and declined to record a conviction.

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