On 11 August 2022, a worker was sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty under section 28(b) of the Act. No conviction was recorded.

The defendant was a Posi Track driver and general site supervisor of a construction company (‘the principal company’) engaged to complete renovation works at a residential property. Another company (‘the subcontracted company’) had been subcontracted to complete plumbing and civil works for the project. Plant at the workplace included the skid steer track front end loader “Posi Track” (‘Posi Track’), owned by the principal company.

On 23 October 2019, workers were at the site, including the defendant and an employee of the subcontracted company (‘the subcontractor worker). A delivery of material arrived at the site for the subcontracted company. The defendant was requested to move some spoil from the driveway to allow the delivery truck access. Workers of the principal company had not been made aware in advance of this delivery.

The defendant boarded the Posi Track and drove it down the driveway past workers of the subcontracted company, including the subcontractor worker. While the subcontractor worker was on the driveway providing hand signals for the delivery truck, he stepped backwards behind the Posi Track. The defendant reversed the Posi Track, after looking over his shoulder and sounding the reverse beeper, and struck the subcontractor worker’s right leg. The subcontractor worker was transported to hospital where he was found to have suffered a right tibia and fibula shaft fracture which required surgery.

The defendant had failed to take reasonable care to ensure that his operation of the Posi Track did not adversely affect the safety of other persons in that he:

• Operated the Posi Track in the vicinity of pedestrians on the driveway;
• Did not properly look around, to cover blind spots, as he operated the Posi Track to move the dirt material or spoil on the driveway;
• Did not engage a “spotter” to look out and provide guidance to him as he operated the Posi Track on the driveway;
• Omitted to implement a barrier or exclusion zone for where he was to operate the Posi Track on the driveway.

In sentencing, Magistrate Cooke took into account the plea of guilty and the serious consequences for the subcontractor worker. His Honour considered the principal company to largely be responsible for the failings in this case. His Honour had regard to the need for general deterrence and considered specific deterrence to be of less significance in all of the circumstances.

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