On 9 April 2021, in the Brisbane District Court, his Honour Judge Reid delivered judgment in Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58. His Honour allowed the appeal brought by the Work Health and Safety Prosecutor, increasing the fine imposed against Wild Breads Pty Ltd from $25,000 to $60,000.

Wild Breads was charged with one offence contrary to s 32 of the Work Health and Safety Act 2011 (the ‘Act’), for failing to comply with its primary safety duty pursuant to s 19(1) of the Act to ensure the health and safety of its workers so far as was reasonably practicable, and exposing a worker to a risk of death or serious injury.

On 20 November 2018, at the Wild Breads factory in the Brisbane suburb of Darra, a worker was crushed between a stationary forklift and a forklift being reversed by a worker employed by the defendant. The injured worker sustained soft tissue injuries. The forklift driver was not looking in the direction of travel while reversing the forklift.

An investigation by Work Health and Safety Queensland (‘WHSQ’) revealed that, on 4 October 2018, the company had identified forklifts in the packing room as a significant risk. The company determined that it would implement line marking and a “tool-box talk” to mitigate the risk. However, those measures were never implemented.

The investigation by WHSQ revealed that, on an earlier occasion, on 7 November 2018, a worker was struck by a forklift in the packing room of the factory without suffering significant injuries. Following that incident, Wild Breads again considered the implementation of controls to mitigate the risk, including line marking and pedestrian separation barriers. Prior to the incident on 20 November 2018, the defendant had also assessed the need for a traffic management plan. None of those measures were implemented or finalised prior to this incident.

On 25 August 2020, Wild Breads entered a plea of guilty to the offence and was sentenced in the Richlands Magistrates Court. It was fined $25,000 and a conviction was recorded.

The Work Health and Safety Prosecutor appealed against the sentence on grounds that:

1. the Magistrate misdirected himself by taking into account an irrelevant sentencing consideration, that is, the actions of the forklift driver when imposing the sentence;
2. the Magistrate erred in his interpretation and application of s 19 of the Act; and
3. the sentence imposed was manifestly inadequate.

The appeal was heard before Judge Reid in the Brisbane District Court on 21 January 2021, with judgment delivered on 9 April 2021.

In allowing the appeal, his Honour was satisfied that the Magistrate approached the matter from an incorrect legal and factual basis, and that the sentence imposed was the result of the Magistrate’s misunderstanding of the proper basis for Wild Bread’s culpability. Further, his Honour was satisfied that the penalty imposed at first instance was manifestly inadequate.

His Honour determined that the appropriate penalty was a fine in the range of $60,000 to $100,000. Having regard to the fact the appeal was one by the prosecuting authority, his Honour imposed a fine at the lower end of that range.

On 21 April 2021, his Honour ordered, by consent, that the respondent pay the Appellant’s professional costs in the amount of $2,100.

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