On 8 September 2023, in the Gympie Magistrates Court, a partner of a small concreting business pleaded guilty to a section 32 (Category 2) offence pursuant to the Work Health and Safety Act 2011, having failed to discharge his primary health and safety duty pursuant to section 19(2). The defendant had failed to ensure that, so far as was reasonably practicable, the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business. He was fined $80,000 and was ordered to pay $1601.40 in prosecution costs and filing fees. No conviction was recorded.

On 13 June 2023, the defendant – who operated a small concerting company with his wife – had been retained by a friend to undertake some concreting work at the friend’s home. The defendant was using a bobcat to level out the work area by reversing with a levelling bar attached to the bottom of the bucket. This would ordinarily trigger a flashing rear reverse light and alarm for safety, but at the time of the incident neither the reverse light nor the alarm was functioning.

After stopping work briefly to chat with his friend, the defendant continued operating the bobcat thinking that his friend had walked away towards the house. The defendant reversed the bobcat without looking behind him and drove over his friend. The defendant immediately yelled out to his friend’s wife to call an ambulance and attempted to dress his injuries and perform CPR, but the man died in hospital later that day. During his interview with Workplace Health and Safety Queensland, the defendant admitted that he had been using the bobcat for many years and had known that the reversing alarm systems were not operational at the time of the incident.

The defendant failed to comply with the duty he owed to the deceased by failing to provide and maintain safe plant and systems of work. This included the defendant failing to ensure that the reversing alarm was operational and would engage when the bobcat reversed; failing to ensure the rear work lights were operational; failing to affix a flashing light to the roof of the bobcat to engage during use; failing to produce a safe work method statement that considered the risks of the work; and failing to set up an exclusion zone around the bobcat when it was operating. The cost of implementing these control measures to reduce the risks and ensure that the bobcat was fully operational would have been approximately $700.

During sentencing, Magistrate Hughes took into account the fact that the maximum penalty was 3000 penalty units ($300,000). His Honour also noted that the defendant had pleaded guilty at an early stage, had cooperated with the investigation, and had demonstrated significant remorse, having been a friend of the deceased. It was a serious example of a Category 2 offence because the risk of injury or death was foreseeable, and the defendant had known about the defects to the bobcat and had chosen not to repair them. The occurrence of the death also reflected the fact that this was a serious breach of duty which had given rise to a significant level of detriment to safety. Magistrate Hughes also considered general deterrence, community denunciation, community protection, and the objects of the Work Health and Safety Act to be of particular relevance. It was also noted that this incident had caused a great deal of emotional harm to the deceased’s family.

Specific deterrence was deemed to be relevant, although to a lesser degree given the effect that the tragic outcome had on the defendant, the remorse he had demonstrated, and the fact that this was a first offence as the defendant was a 51-year-old man without a criminal history and no prior contraventions of the Work Health and Safety Act. The defendant had implemented post-incident safety measures to ensure that future work would be carried out safely in discharge of his primary health and safety duty.

With respect to the recording of a conviction, Magistrate Hughes noted that the nature and seriousness of the offence weighed against the defendant, but the principles of denunciation and deterrence could be appropriately satisfied through the fine imposed given the circumstances of the incident, the defendant’s antecedents and remorse, and the fact that this was a first offence.

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