Details of successful prosecution against E209966 - Company

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011. The company conducted building waste and scrap reclamation and disposal. A smaller business, it comprised two scrap building waste reclamation centres and employed 32 workers and owned several items of plant, including the excavator involved in the incident.

A worker, an experienced plant operator, was killed when struck by an object. He was operating an excavator loading building waste into a truck. He sustained a head injury. The object that struck him was unidentified but most likely originated from the pile of scrap material he was loading. It was able to enter the excavator's operator's cabin which was missing its windscreen and several windows. Its cabin door was unable to be closed. These components are forms of operator protective devices. The defendant company, through its internal reporting systems, had been notified of the defects but kept the excavator in service. There were two prior incidents reported of items entering the operator cabin of its vehicles (not the same excavator) engaged in loading activities. No worker was injured.

Court result

The defendant pleaded guilty in the Richlands Magistrates Court on 27 July 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

The company's sole director was also charged as a result of the incident.

Magistrate Aaron Simpson fined the defendant $200,000 and ordered professional and court costs totaling $1087.40. The court made an order that no conviction be recorded.

In reaching a decision, the Magistrate accepted the company had a work health and safety system in place, but it was not followed. The incident occurred through a failure to carry out routine maintenance which should have occurred given defects were notified some time before. His Honour noted that although prior incidents of items entering an operator cabin were known, by the reports indicating no one was injured or that risk was high, the company director did not realise the gravity of the potential outcome.

Although not a major feature of mitigation, his Honour observed that, due to inability to identify the object that entered the excavator cabin, it was not known whether even had there not been defects, the results of the incident would been avoided. In any event, with respect to general deterrence, his type of plant is used in other similar businesses and compliance with WHS laws is not negotiable. In deciding penalty including the order that co conviction be recorded, Magistrate Simpson took into account the defendant company 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 waste services industry where there is exposure to risks from scrap building material entering the cabin of an excavator, 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 death due to blunt force trauma, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Managing the Risk of Plant in the Workplace Code of Practice 2021 (PDF, 1.57 MB)

Details