On 17 November 2020, the defendant company was sentenced in the Holland Park Magistrates Court for failure to comply with their primary health and safety duty held under s 19(1) of the Work Health and Safety Act 2011 (‘Act’), exposing an individual to a risk of death or serious injury in contravention of s 32 of the Act. Acting Magistrate Robert Turra fined the defendant $35,000 and no conviction was recorded.

The defendant company operated a wholesale fruit and vegetable sales business at Rocklea. On 17 January 2019, two workers were preparing sales orders to be loaded onto transport. A worker sustained compound fractures to his left leg when he was struck by a reversing forklift operated by the other worker.

Investigations by Workplace Health and Safety Queensland (WHSQ) revealed that the process for this task was not formalised or documented and that workers had developed an informal procedure between themselves. The ‘usual’ process as described for the task was that the worker who was not operating the forklift would open the door to the cold room, stand by the open door and act as a ‘spotter,’ while the forklift operator drove into the cold room. On the date of the incident, the injured worker departed from the ‘usual’ procedure and stood in the ‘shared zone’ outside the pedestrian line markings. The defendant failed to implement an adequate and site-specific traffic management plan, document safe work procedures, and adequately train or supervise their workers in relation to these measures. The defendant further failed to implement a suitable combination of physical barriers, warning signage and maintained pedestrian line markings.

In sentencing the defendant, Acting Magistrate Turra took into account the defendant’s timely guilty plea, which indicated remorse and a willingness to facilitate the course of justice. His Honour observed that the documented traffic management plan in place prior to the incident was not site-specific and did not adequately address the risks within the workplace. His Honour also observed that the defendant had not implemented a documented procedure for undertaking routine tasks and that the pedestrian line-markings on the floor were significantly degraded. His Honour accepted that while the injured worker departed from the ‘usual practice’ for the task, it was not a departure from a formal procedure and so could not be considered a mitigating factor for the corporation.

In mitigation, his Honour took into account the defendant’s cooperation with the WHSQ investigation and the post-incident measures implemented, including reviewing the traffic management plan, retraining staff and placing new safety markers in the warehouse. His Honour also took into account the defendant’s lack of previous work health and safety convictions.

Acting Magistrate Turra considered the principles contained in s 9 of the Penalties and Sentences Act 1992, as applied in Steward v Mac Plant and Mac Plant Farms Pty Ltd, and gave significant weight to general deterrence. His Honour commented that a significant penalty would send a message to others in the industry that work health and safety failures are treated seriously by the courts, as injuries arising from poorly controlled interactions between pedestrians and plant at workplaces can be catastrophic. His Honour also determined that an element of personal deterrence was necessary to ensure future compliance. His Honour considered the importance of denunciation and that the measures that could have been implemented to prevent the incident were simple and inexpensive.

His Honour took into account the seriousness of the injury sustained by the worker in this matter. His Honour distinguished this matter from comparable penalties at the higher end of the range and considered that the gravity of the offence was less serious, given that the defendant had also complied with many other aspects of its obligation.

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