On 8 October 2021, Cordwell Resources Pty Ltd and its director Brian Cordwell were sentenced in the Maroochydore District Court for breaching section 31 of the Work Health and Safety Act 2011 (‘the Act’) having failed to comply with their respective health and safety duties pursuant to sections 19 and 27 of the Act. Judge Long SC convicted and fined the corporate defendant of $500,000 and convicted and sentenced the director to six months imprisonment, wholly suspended for a period of 12 months.

Cordwell Resources conducted a business manufacturing and supplying ready mixed concrete aggregates and sands. Its six directors, including the defendant Brian Cordwell, were all members of the Cordwell family. As part of its business, it conducted operations at a sand mine located at Winston Road South, Chevallum (‘the workplace’). Brian Cordwell managed the operations at the workplace and allocated work activities to the company’s employees.

On Friday 15 March 2019, the suction line to the sand wash plant at the workplace broke. This was reported to Brian Cordwell, who approved the sand wash plant being shut down and advised that it would be fixed first thing on Monday, 18 March 2019.

At 6:30am on 18 March 2019, there was a meeting held at the workplace between several workers and Brian Cordwell. Four workers, including the 18-year-old son of Brian Cordwell, were present. During that meeting, Brian Cordwell directed that the valve on the pipe of the sand wash plant would be fixed with two of the workers repairing it while working from the wheel loader’s bucket, and the other placing a chain on the excavator to lift the pipe. Brian Cordwell instructed the two workers on how to fix the valve.

The workers and Brian Cordwell moved to the sand wash plant where the two workers positioned themselves inside the bucket of the wheel loader. One worker operated the wheel loader and lifted its bucket, containing the two workers, to an approximate height of 4.5 metres. The worker then drove it towards the sand wash plant to allow them to work on the valve. Brian Cordwell’s son operated the excavator boom with a chain attached towards where one worker was in the bucket of the wheel loader. That worker took the chain attached to the boom and hooked it onto the pipe of the sand wash plant to stop it falling when it was disconnected. At that time, Brian Cordwell left the area. The worker then knelt on the edge of the bucket, holding tools, and commenced repairing the valve. As he was doing so, the other worker in the bucket held onto him, attempting to prevent him failing forward out of the bucket.

Sometime later, the wheel loader’s bucket containing the workers tilted forward. One worker jumped from the bucket onto the metal cross beam of the sand wash plant to avoid falling to the ground. The other worker went to stand up in the bucket and its top edge, the draw bar, caught the back of his head pushing it against the chain wrapped around the pipe. The worker could not move his head and could feel the bucket pushing against it. Both workers yelled for the operator to stop and the bucket stopped tilting forward and released the worker’s head. The bucket was lowered to the ground and a shirt was wrapped around the worker’s injured head. The workers walked to the office and met with Brian Cordwell. An ambulance was called and the injured worker was transported to hospital where he was found to have two lacerations on his head, measuring 60mm and 100mm, requiring stiches.

Two days later scaffold was erected, at a cost of $4,400, and the valve was repaired.

WHSQ were notified and investigated the matter. In the course of the investigation, Cordwell Resources produced documents including:

• A document entitled, “Procedure for working at heights”, dated 2 April 2017, which outlined that for maintenance work performed at height, including the blockage of pipes, a safety harness was required as Personal Protective Equipment (‘PPE’), and that a cherry picker, scaffolding or tools were to be used as required.
• A document entitled, “Plant risk assessment form” for “front end loader”, dated 23 February 2019, which identified the operation of the plant posed a hazard of being “crushed” and the control measure for this risk was, “no persons are to ride on the plant or attachments.”

The investigation also found that in September 2015, another Cordwell Resources director fell 3 metres from an unsecured ladder after using it to access the valve or indicator on the sand wash plant at the workplace. It was also found that, in December 2018, Cordwell Resources implemented scaffolding at their concrete site at Yandina for workers to use to installl a new pipe between silos. Several of the workers involved in the incident had performed work from the bucket of an excavator or a wheel loader on other occasions at the workplace.

In sentencing, Judge Long SC acknowledged the guilty pleas entered by the defendants and that the pleas were taken into account as a factor in favour of each defendant as cooperation and facilitation in the administration of justice. His Honour acknowledged it was the conduct of Brian Cordwell in his position as director which constituted the offending of Cordwell Resources. Brian Cordwell’s plea of guilty to the offending was found by his Honour to demonstrate his “sincere regret” of what he had done and the outcome which eventuated.

The victim impact statements of the workers in the bucket were taken into account by his Honour. His Honour noted the physical injuries sustained by the worker, his recouperation from those injuries, and the ongoing impact to the worker, including the resulting scars. His Honour also noted both workers no longer worked for Cordwell Resources, although one worker remained in a relationship with the daughter of Brian Cordwell.

His Honour accepted the gravamen of the offending was the defendants’ conduct, which exposed the workers to risk. Whilst the offence did not require the conduct to result in harm, such a result is a relevant consideration on sentence pursuant to sections 9(2)(c)(i) and 9(2)(e) of the Penalties and Sentences Act 1992.

His Honour held that, in relation to the sentence to be imposed on Brian Cordwell, s.9(2A) was enlivened such that the principle that a sentence of imprisonment was a sentence of last resort did not apply. His Honour held that the offending conduct of Brian Cordwell resulted in physical harm, even though he was not the operator of the wheel loader. Brian Cordwell directed workers to engage in a work exercise using unsuitable machinery, despite documented procedures identifying the appropriate measures, and there was a risk posed to the workers from the instability of the plant, whether through human operation or otherwise. 

The competing considerations were weighed by his Honour, who accepted the offending conduct was serious and its associated risk was high. His Honour commented that it was fortunate more extensive consequences did not result, and held that the reckless conduct was not just engaged in without reasonable excuse but with a degree of planning and reflection. It was not conduct engaged in in the spur of the moment.

Judge Long SC indicated the sentences to be imposed denounce the conduct and deter its repetition, including by others who have obligations pursuant to the Act.

His Honour accepted that Brian Cordwell had good standing in the community, and that he had a safety conscious approach to the activities in which he engaged recreationally. His Honour noted he had no criminal history, the offending was otherwise uncharacteristic, and that he had recent health difficulties. His Honour indicated his view that a period of actual custody was not required.

In relation to Cordwell Resources Pty Ltd, his Honour found it had no history and had also been a positive contributor to the community. His Honour noted that consideration must be given to the financial circumstances of Cordwell Resources, but there was no submission made that it lacked capacity to pay a substantial fine.

His Honour ordered the convictions of both defendants be recorded.

The defendants appealed against their convictions imposed by His Honour Judge Long SC to the Court of Appeal on the grounds there were errors made in the exercise of sentencing discretion and that the sentences were manifestly excessive. The Appeal was heard before Acting Justices McMurdo and Bond and Justice Boddice in the Supreme Court of Queensland on 4 May 2022, with their Honours written judgement being delivered on 7 March 2023. Their Honours rejected each of the grounds of appeal and the application for leave to appeal was refused.

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