Details of successful prosecution against E209966 - Individual

Incident description

The defendant held duties under s.27(1) of the Work Health and Safety Act 2011 being an officer of a building waste and scrap reclamation and disposal company.

A worker, an experienced plant operator, was employed by the company. The defendant was the sole director and occupied the position of managing director.

The worker was killed when struck by an object. He was operating an excavator to load building waste in to 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, was 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. The company was also charged as a result of the incident.

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 his work health and safety duties and was sentenced.

Magistrate Aaron Simpson made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 2 years, with a recognisance of $50,000. His Honour also ordered court costs totaling $87.40 with no conviction being recorded.

In reaching a decision, the Magistrate accepted the company had a work health and safety system, but it was not followed. This defendant was to exercise due diligence to ensure that occurred, and that the company implemented adequate process to ensure safety systems were followed. The incident occurred through a failure to carry out maintenance given defects were notified some time before. His Honour noted although prior incidents of items entering the operator cabin were known to the director, by the reports indicating no one was injured or that the risk was high, he did not realise the gravity of the potential outcome.

Although not a major feature of mitigation, his Honour observed that due to the 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 have been avoided.

The court noted the defendant expressed remorse, was not presently working, had sold the business and his work future was uncertain. However, his Honour stated compliance with WHS laws is not an option and penalties will be imposed in the exercise of deterrence. In deciding penalty, including the order that no conviction be recorded, Magistrate Simpson 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 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