On 14 April 2023, a motorcycle racing organisation was sentenced in the Pine Rivers 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 pursuant to section 19(2) of the Act.

The defendant’s work included authorising motorcycle race meetings and issuing track licenses to venues, enabling the defendant’s insurance to cover race events held at the venue.

Between 25 and 28 September 2014, a motorcycle racing event was to be held in Kurwongbah, and an application for a licence was made to the defendant.

Before the licence was issued, a Track Inspector was required to undertake an inspection and prepare a report outlining, amongst other things, the track’s compliance with the defendant’s safety guidelines, a recommendation for whether the licence should be issued and whether the licence should be subject to any special conditions. The special conditions could include things such as requiring the installation of additional protective devices in higher risk areas of the track prior to the race commencing.

The Track Inspector identified a number of areas where additional protective devices needed to be installed, including at turn 9 where Queensland Crash Bags (‘QCBs’) were nominated as suitable for use in part of the turn. QCBs were large bags filled with empty plastic bottles that were lined up, covered with a weed mat, and placed in front of the existing tyre barrier. QCBs were not an officially recommended, tested, or proven protective device and they had no specific installation instructions.

On 28 September 2014, a participant rider was contacted from the rear by a motorcycle being ridden by another participant as they both entered into turn 9. Both riders slid off the track, under the QCBs and into the tyre barrier. One suffered serious injuries and the other was fatally injured.  

The defendant plead guilty and was sentenced before Magistrate Ho. In arriving at the sentence, her Honour had regard to purpose of the Act, the history of the matter and the circumstances of the offending. While it was accepted that the death could not be attributed to the failings of the defendant, her Honour found that all individuals participating in the race were exposed to the risk.

Magistrate Ho highlighted the maximum penalty, the need to convey the community’s denunciation of the offending and the importance of general deterrence as a means to convey that compliance with health and safety duties is not a mere box ticking exercise, but a real obligation.

Her Honour considered that the risk of a crash occurring during a motorcycle race event was foreseeable for both the defendant and the participant riders. Her Honour accepted that motorcycle racing was an inherently dangerous activity. Citing the Court in WorkCover Authority of NSW v Manildra Park Pty Ltd, her Honour noted that the greater risk required the defendant to exercise a higher degree of diligence in making the race as safe as possible.  

Her Honour accepted that there was a failure on part of the defendant to take all appropriate steps rather than a failure to take any steps, accepting that the defendant had relied on the recommendations of a highly trained Track Inspector. Nevertheless, her Honour considered it aggravating that the recommendation to use an untested protective device was contrary to the defendant’s own guidelines and was made in the absence of anything other than anecdotal evidence by the Track Inspector.

Her Honour determined that the matter fell within the middle range of objective seriousness. Whilst the defendant indicated that there would not be difficulty in paying a fine, her Honour took into account that the defendant was a largely volunteer run sporting group and that a particularly onerous fine may impact the defendant’s limited funds. Her Honour noted however that it was important to ensure that the fine was not so low as to simply be considered as an operating expense for events in the future.

In mitigation, her Honour took into account the defendant’s remorse together with its cooperation with the investigation, its lack of convictions both prior to and post incident, changes to its policies, and its otherwise good status as a corporate citizen.

Having regard to all these matters, her Honour considered that a fine of $100,000 along with costs was appropriate. Her Honour exercised her discretion and did not record a conviction against the defendant.

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