On 20 December 2022, a labour hire company that provided workers for its parent company in the business of civil, structural, and mechanical engineering work, was sentenced in the Toowoomba Magistrates Court for breaching section 38(1) of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its duty to notify the regulator immediately after becoming aware that a notifiable incident had occurred.

On 21 July 2020, an 18-year-old first-year boilermaker apprentice, employed by the defendant company, was instructed to heat plastic strips using an oxy-acetylene torch in the workshop of the workplace. On 22 July 2020, the apprentice was undertaking the task. Towards the end of his shift, when he was re-igniting the torch, residual acetylene gas ignited, and an uncontrolled explosion occurred. Given his proximity to the torch, the apprentice was immediately exposed to a serious risk to his health and safety, emanating from the loud bang of the explosion. The apprentice suffered a nosebleed and ringing in his ears. Following the incident, the apprentice returned home, and an internal investigation was commenced by the defendant company’s Workplace Health and Safety Officer.

On 23 July 2020, the apprentice returned to work but continued to suffer from ringing in his ears. He was transported to hospital, where he received treatment. The apprentice suffered profound left side hearing loss and moderate to severe right side hearing loss.

On 10 November 2020, the regulator was made aware of the incident after WHSQ received an anonymous complaint. Formal notification was thereafter made by the defendant company on 23 November 2020.

In sentencing, Magistrate Shepherd considered the defendant’s timely plea of guilty and reduced the penalty that would have otherwise been imposed, noting the plea was indicative of the defendant’s remorse. In determining culpability of the defendant company, Her Honour accepted that the company’s failure to report the incident was neither deliberate nor intentional, but rather an indication that it did not appreciate that notification was required. Nevertheless, Her Honour found that the injuries were a relevant and aggravating circumstance and that the time lapse of four months was relevant.

In mitigation, Her Honour observed that the resolution of the case, in the prosecution accepting the defendant company’s plea to charge 1, saved the costs of a trial. Her Honour noted that the defendant company had been in operation for over 22 years with no adverse WHS history. Her Honour also accepted an affidavit prepared by the defendant company’s sole director, detailing the WHS policies it had in place at the time of the incident and afterwards.

Her Honour noted that while there were few comparable authorities, the matter of Guilfoyle v Cattletrans Pty Ltd had some relevance. Her Honour noted that deterrence was of particular importance but formed the conclusion that the appropriate fine was one of less than $5,000.

Considering these factors, Her Honour convicted the defendant company and ordered a fine of $4,500 be imposed along with $1,601.40 in costs, all of which was referred to SPER. No conviction was recorded.

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