In November 2022 the Defendant company was found not-guilty after a trial in the Beenleigh Magistrates Court for an offence under section 32 of the Work Health and Safety Act 2011 (Qld) (‘the Act’), for failing to comply with its duty under section 19(1) of the Act to ensure, so far as reasonably practicable, the health and safety of workers engaged by the said Defendant while the workers were at work in the business or undertaking.

The Office of the Work Health and Safety Prosecutor (‘OWHSP’) appealed the verdict.

The appeal was heard on 18 April 2024 before his Honour Judge Andreatidis KC. His Honour allowed the appeal and in the exercise of the re-hearing the Defendant was found guilty. Following a sentencing hearing on 17 July 2024, the Defendant was fined $90,000. No conviction was recorded.

Incident and outcome at first instance

In February 2020 the Defendant was carrying out work that involved chemically treating timber at a workplace located in Meadowbrook. As part of the operations, delivery drivers would deliver loads of timber to the workplace.

On the 4th of February, one of the regular delivery drivers, arrived with a load of timber which was to be unloaded by a forklift driver employed by the Defendant.

The Defendant had a safe work policy for unloading which required truck drivers to remain in or near the cabin of the truck and forklift operators to stop work until the drivers were in the designated location.

During the unloading, the forklift operator directed the delivery driver to return to the appropriate location on two occasions, but the delivery driver continued to walk around talking to the forklift operator and the forklift operator continued to unload the truck.

At one point during the unloading the forklift operator began reversing the forklift to remove some of the timber from the truck’s trailer. The timber which was being moved became caught on a nearby stack of timber, which then fell from a height onto the delivery driver. The delivery driver sustained significant injuries including multiple skull fractures and fractures to the pelvis, leg and hand as well as a perforated intestine.

On 18 November, following a hearing in the Beenleigh Magistrates Court, the Defendant was found not guilty.

Appeal against verdict

The OWHSP appealed the verdict on two grounds, including that the Magistrate had erred in law by failing to correctly apply sections 17, 18 and 19 of the Act. Judge Andreatidis KC allowed the appeal, finding that the learned Magistrate had erred by focusing his consideration on the adequacy of the existing safe work systems instead of considering whether the controls alleged by the OWHSP were reasonably practicable controls which would have minimised the risk.

On the re-hearing of the matter his Honour found that it would have been reasonably practicable for the Defendant to have implemented:

1. Safety barriers
2. Line markings
3. A separate waiting area away from the unloading zone; and
4. A written protocol giving effect to the above controls.

His Honour noted that the assessment of risk was to be applied generally, not with specific reference to the incident which occurred or the people who were involved in it. His Honour found that the implementation of the additional control measures would have reduced the level of risk that workers generally were exposed to, were reasonably practicable for the Defendant to have put in place prior to the incident and the failure to implement them was a breach of the Defendant’s duty.

Sentence hearing

The matter proceeded to sentence before Judge Andreatidis KC on 17 July 2024 in the Brisbane District Court.

His Honour took into account the legislative framework and policy behind the Act as well as the purpose of sentencing as set out in the Penalties and Sentences Act 1992 (Qld).

His Honour had regard to the fact that the Defendant had been in business since 2009 and had no prior history of offending and Honour considered that the Defendant had an impressive attitude to safety. It was noted there were fulsome safe work systems already in place which included the engagement of an experienced external safety consultant who provided yearly audits of the workplace. It was accepted that the Defendant had an unloading policy which would have prevented the incident had either worker complied with it.

Regard was had to the Defendants swift implementation of controls post incident and their high level of cooperation with the investigation. Notwithstanding the fact that the matter was contested, his Honour considered that these actions were consistent with the Defendant being remorseful and taking safety seriously.

His Honour noted that deterrence looms large in Work Health and Safety prosecutions, specifically general deterrence. His Honour observed that in this matter specific deterrence did not feature significantly. His Honour further had regard to the extensive injuries that were suffered by the delivery driver and the impact that they had on his family.

His Honour considered the relevant factors set out in Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20 in determining the objective seriousness of a matter and observed that the work being carried out self-evidently posed a risk of the most serious kind, namely one of serious injury or death, if adequate controls were not implemented. It was noted that the probability of the risk occurring needed to be balanced against the safety procedures already in place, but that the risk needed to be addressed for both people who did and did not comply with policies. There was no evidence to suggest that the steps were complex or burdensome, they were easily implemented, could have been and were implemented following the incident.

His Honour observed that the Defendant was not entitled to a discount for a plea of guilty and that the penalty imposed should fairly reflect the seriousness of the breach and incorporate considerations of general deterrence, denunciation and protection of the community. It was also noted that the fine would be paid by insurers, so there were no concerns with capacity to pay.

His Honour found that but for the mitigating factors and the specific circumstances of the Defendant, a fine of $140,000 would have been appropriate.

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