On 27 April 2023, a business in control of a sand dredging barge (‘the barge’) 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 its primary health and safety duty pursuant to section 19(1) of the Act.

On 19 June 2020 at Newstead, a worker was securing slings and a drum grab lifting attachment to an excavator bucket pin in preparation to lift three 44 gallon drums of waste oil from the barge which was moored at the Newstead dock. The worker was standing under the bucket of the excavator whilst carrying out this work and the excavator operator has been seated at the excavator controls.

As this work was being carried out, the excavator operator has moved from his seat to prevent a window in the excavator cabin from closing. In standing, the excavator operator has inadvertently knocked the hydraulic control levers, causing the arm and bucket to move downwards, crushing both of the workers arms against the drums of waste oil. The worker suffered extensive soft tissue swelling and fractures to his left hand and multiple fractures to his right arm.

The defendant entered a plea of guilty and was sentenced by Magistrate Nolan. In arriving at the sentence, his Honour had regard to the Penalties and Sentences Act 1992 (Qld), the history of the matter and the circumstances of the offending.

His Honour noted that it is always unfortunate and of concern when a person goes to work at their workplace and suffers injuries as a result, remarking that no one expects, when going to work, that they are going to come home injured.

His Honour observed that this experience would have been terrifying for both the injured worker and the excavator operator and noted that the operator had been separately prosecuted for this incident.

Magistrate Nolan highlighted that those people who are running a business and employing people have an obligation to both those people and the community to ensure that the workplaces operated are safe, any risks identified, and operating procedures put in place to prevent or reduce the likelihood of injuries.

His Honour considered the steps taken by the defendant post incident both in supporting the injured worker and in contributing to safe work practices for their business, and the community as a whole, to be exemplary. However, it was also observed that it was unfortunate that injuries often had to occur before such steps are taken and his Honour noted that for the expense of $500, if the post incident measures had been implemented earlier, this incident would not have occurred.

His Honour took into account that the defendant had a long history of operating in Queensland with no prior history of like offending and considered that the need for specific deterrence did not loom large as a sentencing consideration. It was considered that the more significant issue with respect to framing the sentence was general deterrence and sending a message to the community.

In mitigation his Honour took into account the defendant’s cooperation, the timely plea of guilty and the steps taken post incident.  

Having regard to all these matters, his Honour considered that a fine of $60,000 along with costs was appropriate. His Honour exercised his discretion and did not record a conviction against the defendant.

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