On 31 March 2022, a company running a strawberry farm business and its sole director were sentenced in the Caloundra Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their respective health and safety duties. The company pleaded guilty to failing to comply with its primary duty to ensure workers’ health and safety, thereby exposing them to the risk of death or serious injury. The director pleaded guilty to failing to exercise due diligence to ensure the company complied with its duty, thereby exposing workers to the risk of death or serious injury.

On 21 September 2020, a worker was instructed by the defendant director to fell, trim and remove two large trees at the farm using a chainsaw he owned. This was approximately the fourth time the injured worker had felled trees at the farm on the director’s request. The removal of trees was incidental to the ordinary work carried out by the business.

After the two trees were cut down, the worker was cutting branches from one of the fallen trees. To assist with this process, the tree limb was lifted by another worker operating a skidder. Whilst the limb remained suspended in the air by the skidder, the worker moved closer in an attempt to quickly cut a remaining branch from the underside of the limb with his chainsaw. This disturbed the weight of the suspended limb, causing it to fall from the skidder bucket and land directly on the worker’s legs. The limb was 38 centimeters thick and 6.87 metres long. As a result of the incident, the injured worker suffered a fractured tibia and fibula in both legs, a dislocated and fractured ankle, and a fractured metacarpal in his right hand.

An investigation undertaken by Workplace Health and Safety Queensland (‘WHSQ’) revealed the defendant company did not undertake a risk assessment for the work, it did not have a safe work method statement and its workers were not formally trained or qualified to carry out the work.

Her Honour Magistrate Benson accepted that the nature of the work was isolated from the ordinary course of the defendant’s business. Her Honour noted that it was unlikely this type of situation would arise again as the defendants had put arrangements in place to ensure the work would be carried out by professionals in the future.

Her Honour found guidance from the cases provided by the parties: Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58 and Steward v Mac Plant Pty Ltd; Mac Farms Pty Ltd [2018] QDC 20. She observed that the offending in Wild Breads was more serious than the present and the offending in Mac Plant was much less serious than the present case.

The learned Magistrate accepted the defendants had entered early pleas of guilty. Her Honour also had regard to the respective maximum penalties. A mitigating feature referred to by her Honour included the defendant’s lack of criminal history, accepting this as an indication that the offending was out of character. Her Honour also took into account, the defendant’s significant cooperation with WHSQ.

In the circumstances, a fine of $37,500 was determined to be the appropriate penalty for the defendant company. The director was fined $7,500. No convictions were recorded.

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