On 12 October 2021, a wholesale produce business and its director were sentenced in Warwick Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their duties under sections 19(1) and 27(1), respectively.

The defendant company operated a wholesale produce business involving the farming of mushrooms. As part of the work of the business, workers were required to assist in the emptying of the growing rooms in which mushrooms are grown on purpose-built racks. That task required the operation of a winch system which extracted used compost matter from the racks (‘the Winch System’). The Winch System was a custom-made piece of plant with no identifying make, model or serial number. The plant was approximately 30 years old and was made onsite by the director’s father and uncle. There was no guarding on the winch drum to provide a barrier to workers operating the winch and there were numerous exposed mechanisms of the plant that were nip and entrapment points.

On 17 June 2019, a casual farm labourer commenced work at the company’s premises and was tasked to assist in emptying the growing rooms. After assisting in emptying three racks, the worker was preparing the fourth rack to be emptied and switched on the Winch System. The worker’s left arm became entangled in the Winch System and was traumatically amputated below the elbow. The winch drum ceased to rotate at this time. While attempting to remove his left arm, the winch drum re-engaged and the worker’s right arm also became entangled in the Winch System. The worker managed to free himself from the winch and call for help. A truck driver rendered emergency first-aid and applied a belt around the worker’s arm as a tourniquet. Queensland Police Service and Queensland Ambulance Service subsequently attended the scene prior to the worker being airlifted by Life Flight Doctors and paramedics to the Princess Alexandra Hospital where he underwent emergency surgery.

In sentencing the defendants, Magistrate Noud took into account their timely pleas of guilty, which he held indicated remorse and a willingness to facilitate the course of justice.

In determining the culpability of the defendants, His Honour had regard to the principles enunciated 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 observed that the likelihood of the risk occurring here was high, given the dangerous nature of the plant and the complete absence of guarding. His Honour remarked that the potential consequences of the risk were obviously severe and easily identifiable by the defendants. Further, the learned Magistrate considered the steps to eliminate, or at least minimise, the risks posed were available and could not be considered complex or burdensome, evidenced by the fact that guarding had since been implemented. His Honour considered that, at most, those steps could be considered a mild inconvenience to the defendants.

His Honour also had regard to the serious nature of the injuries suffered by the worker, which he described as horrific.

In mitigation, His Honour took into account the significant post-incident measures implemented by the defendants, but noted that, while relevant, they did not warrant the exercise of any special leniency. His Honour also took into account the defendants’ cooperation with the WHSQ investigation, lack of previous work health and safety convictions, and prior good character.

For those reasons, His Honour considered that there were strong prospects of rehabilitation and that the need for specific deterrence did not loom large.

Magistrate Noud convicted and fined the company $120,000 and the director $10,000 and exercised a discretion not to record convictions.

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