On 23 September 2020, the defendant was sentenced in the Noosa Magistrates Court for failure to comply with the health and safety duty he held as a worker, under section 28 of the Work Health and Safety Act 2011 (‘Act’), to ensure that his actions did not adversely affect the health and safety of other persons, in contravention of section 33 of the Act. Magistrate Maxine Baldwin imposed a fine of $3,000 and no conviction was recorded.

The defendant was a worker and site supervisor at a demolition worksite in Noosaville. On 14 January 2019, a Workplace Health and Safety Queensland (‘WHSQ’) Inspector attended the worksite and observed the defendant operating a large excavator to load an adjacent dump truck. A claw attachment was affixed to the end of the excavator boom. The Inspector signalled to the defendant, who subsequently waved and indicated that she should approach. The Inspector approached the excavator until she was standing approximately three metres from the defendant and proceeded to discuss compliance issues with him. The defendant remained in the excavator cabin during the discussion and left the engine running. The boom of the excavator was positioned so that it was resting in the back of the dump truck. The defendant’s adult daughter, who was a worker at the site, also approached and stood near the Inspector.

Shortly after a discussion concerning the defendant’s unwillingness to wear a seatbelt, and while both women were standing within the radius of the excavator boom, the defendant moved the excavator so that the boom was raised from where it had been positioned in the back of the dump truck and towards where Inspector and the worker were standing. The defendant then caused the claw at the end of the boom to land on the ground between the truck and the Inspector, approximately five metres from where the Inspector was standing. The defendant was aware that persons were present within the radius of the boom when moving it. The Inspector was shaken by the incident and left the site soon after.

In sentencing, Magistrate Baldwin observed that the defendant was clearly exasperated at the time of the incident and, while he may regret his actions on that day, those actions would have been frightening. Her Honour considered the defendant’s early guilty plea and his exemplary health and safety record, his long history of work in the industry and numerous character references provided to the Court.

Her Honour observed that general deterrence was an important consideration in order to send a clear message to others to be careful when operating this type of equipment. Specific deterrence was not considered to be necessary in this case. In determining not to record a conviction, Her Honour observed that to do so might impact the defendant’s ability to obtain contracts and that it was the defendant’s first offence.

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