Note: the decision in this matter is the subject of an appeal.

On 8 August 2024, a restaurant company was sentenced in the Holland Park Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (Qld) (“the Act”), having failed to comply with its duty under s.21(2) of the Act to ensure, so far as is reasonably practicable, that plant with which it had the management or control was without risks to the health and safety of any person.

The defendant carried on a noodle restaurant. The defendant’s workers made the noodles on site from dough, which was mixed in a dough mixing machine. The machine had an electric motor, which drove four stainless steel blades on a rotating central shaft between three fixed blades attached to the side of the mixer container.

The machine had a stainless-steel lid with a handle. When the lid was closed, the internal mixing parts were completely covered, preventing anything from entering the mixing space. However, the lid was not interlocked with the motor, such that the lid could be opened while the machine was operating and the blades were rotating. The machine was also missing a control switch lever, requiring the use of pliers to start and stop the machine, and the emergency stop switch was out of service.

On 28 November 2021, a kitchenhand was mixing dough using the machine, when the glove he was wearing fell into the dough being mixed. The worker attempted to retrieve the glove by reaching his hand into the machine when his arm became entangled in the mixing blades. Other workers came to his aid, unplugging the machine from the power outlet. The worker sustained a traumatic amputation of his right forearm, requiring multiple surgical intervention to reattach his arm performed over 86 days in hospital.

Following the incident, the defendant replaced the machine with one with an interlocked lid.

In sentencing the defendant, the magistrate noted the absence of policies or risk assessments to indicate that the company was alive to managing the risk of entanglement or indeed safety of its workers. The magistrate also noted that the maximum penalty for the offence reflected the seriousness with which parliament intended the courts view the seriousness of the offence.

The magistrate noted the potential for the machine to be opened whilst in operation and that the probability of the risk was quite high. The magistrate referred to the code of practice’s prescription of interlock guarding as a base level that should be observed by companies operating such plant. The magistrate had regard to the workers’ injuries and said that they can only be described as ‘horrific’.

The magistrate accepted that, whilst little weight should be given, the defendant had taken steps since the incident and was heartened by the fact that a letter of remorse by the director. The magistrate said that general deterrence is the principal purpose of sentencing occupational safety offenders and that it was the predominant and critical factor.

The magistrate said that the Court had a duty to ensure a level of penalty for a breach would compel attention to occupational health and safety issues. The magistrate took into account the defendant’s post-offending conduct, the expression of remorse, the plea of guilty, the cooperation with the authorities, the prior good character and the rectification of the practice.

The magistrate took into account that the defendant had paid the injured worker a total of $135,830.22 towards his medical treatment and was heartened by the large amount of work done to try and ensure that the injured worker regained the use of his hand. However, the magistrate said that no defendant should have a lesser level of culpability because of sums being paid out.

The magistrate fined the defendant $60,000 and declined to record a conviction.

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