Details of successful prosecution against E224158 - Individual

Incident description

The defendant held duties under s.27 of the Work Health and Safety Act 2011 being an officer of a company conducting a business or undertaking – a commercial dairy.

One of the company's workers was a 60 year old maintenance person (an experienced fitter and turner/boiler maker) whose work included use of plant owned by the defendant company. On 4 February 2016 the worker was removing a fan from an electric motor assisted by other workers. The worker tried a number of methods to remove the fan however was unsuccessful. The worker then decided to use an angle grinder and asked another worker to obtain it from inside a cupboard.

The angle grinder was a Bosch 230 mm (9”) angle grinder with attachments including an oversized abrasive cutting disc/cut off wheel. It did not have a guard attached to it. The disc attached to the grinder was incompatible in that it was oversized. At some stage, the grinder had been modified to fit the larger disc. It was not known who modified or authorised the modifications to the grinder. The grinder was owned by the defendant company.

In the process of cutting bolts from the fan, the cut off wheel affixed to the plant shattered into several shards fatally striking his chest area.

WHSQ commenced an investigation. It was found that the hazard was not adequately assessed prior to allowing workers to perform work in that there was a failure to adhere to the Operator's Manual. A regime for inspection of plant did not exist at the workplace.

Prosecution submitted the system of work for the task was totally inadequate and that the defendant did not have an inspection regime in place relating to plant. The risk was able to be eliminated or minimised. It was obvious, foreseeable and preventable through implementation of simple control measures. An exercise of due diligence on the part of the defendant would have seen the right system in place, and the company meet its duties.

Court result

The defendant pleaded guilty in the Maroochydore Magistrates Court on 9 June 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his duty of due diligence to ensure the company met its work health and safety duties.

Magistrate Annette Hennessey made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011. No conviction was recorded.

Her Honour found that there was no regime in place for inspection of plant, particularly power tools. The incident occurred in a workshop where the angle grinder was readily available. The risk was obvious, foreseeable and the steps to eliminate it were available. Post incident, the defendant ensured the company made significant changes. On that basis, specific deterrence was of lesser importance.

In deciding penalty, Magistrate Hennessey 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 Agriculture, Forestry and Fishing industry where there is exposure to risks from incomplete or defective scaffolding, duty holders should consider the following:

• Work Health and Safety Act 2011
• Scaffolding code of practice 2021 (PDF, 1.63 MB)
• Managing the risks of plant in the workplace Code of Practice 2021 (PDF, 1.57 MB)

Details