An operator of an excavator was sentenced in the Brisbane Magistrates Court on 20 May 2022 for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty as a worker. Magistrate Kay Philipson convicted and fined the defendant $2,000, exercising her discretion to not to record a conviction.

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 a sand dredging barge moored at the Newstead dock. Whilst the worker was under the bucket of the excavator securing the lifting attachments, the defendant, who was inside the cabin of the excavator, moved from the seat in the excavator to prevent a window of the cabin from unexpectedly slamming closed and, in doing so, bumped the hydraulic control levers of the excavator in the process. This caused the arm and bucket of the excavator to move downwards, striking both of the worker’s arms and crushing them against the drums.

Magistrate Philipson took into account the plea of guilty and considered it timely which entitled the defendant to a lesser penalty than otherwise may have been received. In mitigation, her Honour accepted that there was no suggestion that the defendant had done anything but assist the prosecution and had no previous convictions. Her Honour noted that the defendant is 50 years old and has worked in the industry for a considerable period of time, having received his excavator licence in the 1990s. Her Honour had regard to the circumstances in which the incident occurred, namely due to the defendant bumping the controls of the excavator while moving from his seat in order to prevent the cabin window from unexpectedly closing.

Magistrate Philipson noted the concerning nature of the incident and that the worker had sustained fractures to both of his arms, but that the consequences could have been much worse. Her Honour took into account that there was a verbally agreed plan and exclusion zone and that the incident had occurred from a moment of inadvertence. Magistrate Philipson observed that it was unclear why or whether the defendant could have shut off the control lever, but that it ought to have been foreseeable that the windows could fall down and that it was necessary to shut off the lever if the defendant was to move about the cabin.

Her Honour rejected the defence submission for a training order, failing to see the assistance of this for someone of the defendant’s age and experience. Her Honour held that imposing a fine for a breach of the WHS Act is appropriate and provides for general deterrence, in that others ought to be made aware that they must take measures to comply with the relevant legislation. Her Honour observed there was not any recklessness on the part of the defendant, but rather inadvertence and a failure to have done all that he could have done in situations where he knew or ought to have known the risk to the injured person. Magistrate Philipson had regard to the maximum penalty of $150,000 and considered both the defendant’s culpability and capacity to pay a fine.

In mitigation, her Honour accepted that there was no malice on the part of the defendant and that he himself had suffered injuries from a previous unrelated industrial accident, from which he had received psychological treatment and had suffered ongoing symptoms. Her Honour observed, however, that as a result of that incident, the defendant was aware of the potential impact of neglecting workplace duties. Magistrate Philipson took into account that the defendant had to change his employment due to his inability to go back to the workplace.

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