On 12 December 2023, a worker was sentenced in the Caloundra Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to comply with his primary health and safety duty, thereby exposing workers to the risk of death or serious injury.

The defendant was employed as a plant operator and on the 4^th of November 2022 he was operating a 42 tonne earthmoving excavator at a civil construction site on the Sunshine Coast when an incident occurred. The defendant was a very experienced plant operator with in excess of 15 years earthmoving experience. The defendant had been carrying out pipelaying excavation works for approximately 6 weeks prior to this incident occurrence with his duties encompassing digging trenches, assisting in the placement of trench boxes (barricades to permit workers to safely undertake pipe-laying work activities in the trench) and removal of these boxes and then back-filling the newly laid pipes in the trench.

On this date he had just removed a trench box and placed it nearby and maneuverer the excavator arm to detach the lifting apparatus and to attach the excavator bucket to undertake the back-filing of the trench. To attach the bucket, he operated an hydraulic lever from within the cabin which disengaged the lifting apparatus from the end of the excavator arm, and he then attached the bucket to the arm.

It is industry practice that plant operators are required to check the newly attached apparatus (here the bucket) to ensure it is secure. To do this the operator does what is known as a ‘bump test’ which required the defendant to operate the controls to manoeuvre the arm and bucket attachment and place it on the ground and to then drag the bucket; the operator then lifts the arm to operate the controls to shake it from side to side to ensure it is secure. The defendant did not adequately perform the bump test with the result that as he has lifted and slew the excavator arm, the bucket has detached and fallen and slid down an embankment, striking a nearby pedestrian worker who suffered serious facial (jaw fractures and dental injury) as well as compression injuries to his spine.

In considering an appropriate sentence, Magistrate Benson observed that defence had referred to this incident on a number of occasions as an ‘accident’ – her Honour rejected that categorisation, stating, accepting the prosecution’s submissions, this was an ‘incident’ which the defendant had caused; it was a matter that was within his control to prevent and the incident had resulted in a worker suffering serious injury; her Honour noting the medical treatment the injured person had received as detailed in his victim impact statement.

Her Honour accepted prosecution submissions relating to s.9 of the Penalties and Sentences Act that general deterrence was an important feature of any sentence to be imposed for this matter, acknowledging specific deterrence was less applicable. Her Honour noted, on matters of mitigation, there had been an early plea of guilty stating she had moderated the sentence due to that feature. Her Honour also accepted a defence submission that the defendant had limited financial capacity to pay a fine (observing there was an affidavit before the court addressing this aspect), had made full admissions in a voluntary interview with WHSQ inspectors and accepted defence submissions the incident had affected the defendant such that he had changed his work duties so that he no longer undertook duties that necessitated him operating plant in proximity of pedestrian workers. Her Honour noted the defendant had a dated minor criminal history which was not relevant to this matter. Her Honour exercised her discretion to not record a conviction observing the defendant had a good work history, was remorseful and otherwise of good character.

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