On 15 March 2024, a company was sentenced in the Brisbane Magistrates Court in relation to two charges 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 (both under section 19(1) and under section 19(2)).

The defendant provides building management services for a multi-storey commercial building in Brisbane (“the building”). It employed a facilities manager at the building, who had been in that role for over 10 years at the time of offending. The charges stem from a tragic incident on 17 May 2022, when 80-year-old Mr Bruce Johnston attended the building to meet with his accountant. He proceeded to level 4 and asked the receptionist if he could use the bathroom, and unfortunately never returned. The following day, after he had not returned home and his family raised alarms, Mr Johnston was found, deceased, in a ‘disused stairwell’ near the reception.

At the building, there is an internal staircase between level 3 and level 4, as the same tenants previously occupied both floors. However, around 2016, when those tenants vacated, there was no longer a need for interconnecting floors, so the entry/exit on level 3 was covered over with a plasterboard wall. The internal staircase was hazardous in that it posed a risk to the health and safety of workers and visitors to the building if they opened the door and fell down the stairwell and/or became entrapped in the stairwell. The potential consequences of the risk included death or serious injury. The disused stairwell was dark, with the lights on the wall not in correct working order.

The entry to the internal staircase on level 4 is in an alcove near the lifts, which has three doors. On the left is a door to the male toilet, on the right is a door to a unisex toilet, and in the centre is a door which, at the time, had an A4 laminated sign attached to it which stated “No Exit.” The sign for the male bathroom was affixed to the same wall as this door. It is this door which leads through a small landing to another door, which is how access to the internal stairwell is obtained. It comprises a flight of 11 steps (on a downward curve), then a mid-landing, then a further 14 steps to the plasterboard wall on level 3.

On three previous occasions between 2020 and 2021, individuals had been trapped in the internal staircase. The door to it contained an automatic closing device, meaning that once an individual entered, and the door closed behind them, they could not get out. The facilities manager employed by the defendant knew about two of the entrapments, on 21 September 2021 and 23 September 2021, but did nothing to remedy the hazard nor report the entrapments to the defendant. Ultimately, one of the trapped contractors (on 23 September 2021), had to use a crowbar to pry the door open.

The tragic death of Mr Johnston occurred just under eight months after the last two entrapments. Post-incident, around $3,000 was expended by the defendant to install deadbolts on both doors, replace the locking mechanism, ensure there was adequate lighting in the stairwell, install a sensor behind the door and install signage on the level 4 door. 

The facilities manager was also charged (as a worker). He was sentenced on 17 November 2023 to a fine of $30,000. 

In sentencing the defendant, Magistrate Pinder outlined that the sentencing process involved considering many features, and is informed by both legislation and case law, but that the exercise does not in any way reflect the immeasurable loss the family (many members of which were in court) has suffered.

His Honour found that the risk was readily foreseeable and was ultimately rectified quickly and at little cost, and noted the Victim Impact Statements spoke of a profound and continuing loss, which has impacted the whole of the broader family. His Honour also noted that general deterrence and denunciation were important features in work health and safety prosecutions. However, in mitigation, his Honour took into account the early plea of guilty, the lack of prior history, the defendant’s cooperation and genuine remorse, and that it is a good corporate citizen, together with the factual circumstances, including the facility manager’s role. Ultimately, his Honour found that the defendant’s culpability was lessened (while noting that the duties are non-delegable) given it had ‘sophisticated, extensive and broad ranging’ safety systems and procedures in place, and employed the facility manager as a physical presence on the floor, whose role it was to inspect and rectify risks, which thereby reduced the objective seriousness of the defendant’s offending and lessened the need for specific deterrence.

Overall, given the procedures which the defendant already had in place, and noting the purposes of imposing sentence and the principles in the Penalties and Sentences Act 1992 (Qld), his Honour convicted and fined the defendant $150,000, and exercised his discretion to not record a conviction.

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