On 1 May 2024, the defendant was sentenced in the Southport Magistrates Court for failing to comply with an individual duty (as a worker) to take reasonable care that their acts or omissions did not adversely affect the health and safety of other persons, and by failing to comply with that duty, thereby exposing an individual to a risk of death or serious injury.

The offending occurred on 25 March 2021, while the defendant was employed by a company which specialised in the storage and maintenance of vessels. The defendant was employed by the company to operate a large mobile carrier in the vicinity of a launch / recovery bay leading into a river at a boat yard.

The basis of the offending was that the defendant failed to comply with their personal duty by failing to keep a proper look out while they operated that large mobile carrier at the boat yard. By failing to comply with that duty the defendant exposed an individual to a risk of death or serious injury. That risk manifested on 25 March 2021, when the defendant struck a fellow worker with the large mobile carrier. The injured worker had been standing in position in the vicinity of the launch / recovery bay at the boat yard for approximately 45 seconds prior to being struck by the defendant. As a result of being struck by the mobile carrier the worker sustained fractures to his legs, which later necessitated the surgical amputation of his left leg below his knee.

The defendant operated the mobile carrier at the workplace in circumstances where exclusion zones were not implemented in the vicinity of the launch / recovery bay, and the existing standard operating procedures for the operation of the large mobile carriers did not prohibit workers and other persons from entering, or remaining in, marked exclusion zones.

The defendant operated the mobile carrier in circumstances where their spotter, which was required by company policy to operate the mobile carrier, did not spot for the defendant while they operated the mobile carrier.

Magistrate Pink accepted that the criminality of the offending encompassed the defendant’s failure to keep a proper look out while they operated the mobile carrier prior to striking the injured worker, and that the defendant either knew, or ought to have reasonably known, that other workers were standing in the vicinity of the launch / recovery bay at the relevant time.

Her Honour found that the potential consequences of the risk the injured worker was exposed to by the defendant included a risk of death, and that the probability of the risk materialising was foreseeable to the defendant in the circumstances.

Her Honour accepted that the circumstances of the offending involved failures by other parties (the spotter and the employer) and considered the objective seriousness of the defendant’s failure by reference to those other matters.

Her Honour took into account the defendant’s early plea of guilty, a character reference, and good antecedents.

Her Honour fined the defendant $3,000 and did not record a conviction. The fine was referred to SPER.

Magistrate Pink also ordered the defendant to pay professional costs of $1,500 for the hearing of the complaint and $101.40 court filing fee for the filing of the complaint.

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