Details of successful prosecution against E202336

Incident description

The defendant held duties under s.19 of the Work Health and Safety Act 2011. He traded in partnership with his wife as tree loppers, operating for over 20 years without incident.

In August 2014 he was engaged to cut and lop 8 trees in a backyard. To save costs, it was agreed the home occupier and other family members would assist in carrying out groundwork while the defendant cut the trees.

During the tree lopping, the home occupier sustained fatal injuries when he was struck and crushed by the falling section of a tree trunk and branches.

The defendant pleaded guilty in the Brisbane Magistrates Court on 20 June 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced.

Magistrate Robert Walker fined the defendant $80,000 and ordered professional and court costs totalling $1086.40. No conviction was recorded.

Court result

In reaching a decision, the Magistrate noted it was trite to say it was a serious offence, the result of the offence was the death of a person. The defendant was hired by the deceased and his partner to cut trees at their home. It was a regular practice of the defendant to carry out business in this way. The Magistrate held that the use of untrained persons to save costs gave rise to its own risks. Those persons were not trained and could not add their judgment to the risk assessment that an experienced worker might be able to do.

The defendant climbed into the trees with a chainsaw using a second tree as a pivot point to lower the sections of trees and branches cut. The deceased and others were in vicinity of the work assisting by holding the lowering rope to lower branches that were cut.

The hazard was the large trees and the system of work to cut and lower that gave rise to the risk. The risk in this case that was realised was death.

The defendant cut a section of the tree that was 18.5 metres long, weighed 380 kilograms and the deceased and the defendant's wife were holding the end of the lowering rope 5.3 metres from the second tree and 16 metres from the primary tree. The limb that was cut fell, bounced off the second tree, the rope parted and the falling limb struck the deceased. The circumstances identify the offence of failure to provide a safe system of work for the risk of a falling limb. Steps could have been taken included removing people from the fall zone regardless of the risk to structures and vegetation and tying off the limb.

In assessing the facts, the degree of culpability and while recognising that the failure of the defendant was not a deliberate one there also was a degree of negligence in failing to properly carry out his duty to assess risk and available ways to address risk in a high risk environment. The defendant had no particular qualification but a long history of working in this field and that may go some way to explain why he did not recognise the risk. That does not greatly diminish culpability as the result of that failure was tragic.

The Magistrate accepted the defendant was remorseful and that it clearly had a significant impact on him. He only recently returned to work in this field for financial reasons to support his family. It has had a significant impact on the extended family of the deceased as recorded in Victim Impact Statements.

In exercising discretion the Magistrate had regard to section 9 Penalties and Sentences Act 1992 guidelines and principles that call for deterrence and denunciation; considered the nature of the offence and its seriousness; and took into account the impact, the mental and emotional harm to the extended family as a result of the offence.

The Magistrate also considered the use of cases from other harmonised jurisdictions in accordance with the decision of the District Court in VH & MG Imports Pty Ltd [2017] QDC 56. In deciding penalty, Magistrate Walker took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the arborist industry where there is exposure to risks from falling sections of timber, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of being struck by falling sections of a tree, obligation holders should consider use of suitable controls including an exclusion zone and use of properly trained persons.

Visit the Workplace Health and Safety Queensland website for information on:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011

Details