Details of successful prosecution against E225842

Incident description

The defendant company held duties under ss.19(1) and (2) of the Work Health and Safety Act 2011. It operated a valet service providing transportation of guests and luggage at an island resort.

An employee of the valet service drove a six-seat golf buggy which towed a valet trailer. With five adults and three infant passengers aboard and their luggage in the trailer, the driver was traversing a steep road when the brakes failed, causing the buggy and trailer to travel at increasing speed. As the buggy approached the base of the hill, the driver was unable to negotiate a left turn. The buggy and trailer struck the concrete guttering on the side of the roadway, causing it and the trailer to tip onto the driver's side and collide with a stationary golf buggy.

As a result, all the passengers sustained injuries. They included bruising and lacerations, fractured legs, arm, ribs, jaw, skull, punctured lung, swelling and bleeding on brain. A nine-month-old sustained a broken leg and a fractured wrist. A ten-month-old sustained a severe laceration and bleeding on the brain.

Inspection of the golf buggy after the incident found it to be in an unsatisfactory mechanical condition due to the condition of the rear brakes. The rear brakes had next to no stopping function.

Court result

On 5 September 2018, the defendant pleaded guilty in the Proserpine Magistrates Court 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.

Magistrate Simon Young fined the defendant $220,000 and ordered professional and court costs totalling $1,942.30. The court ordered that no conviction be recorded

In reaching a decision, the Magistrate Young took into account the following:

• The CCTV footage of the incident which he described as confronting.
• The victim impact statements were distressing.
• The defendant had only an “ad hoc” regard to maintenance.
• The risk to the worker and members of the public was foreseeable and identifiable.
• The offence was at the higher end of gravity for category 2 offences, but not the highest.
• The range suggested by his Honour Judge Dearden in Williamson v VH & MG Imports [2017] QDC56 of $200,000 to $400,000 did not relate solely to offences where fatal injuries had been sustained. The range also took into account the usual mitigating features as noted in paragraph [75].
• Although there were two offences, one under a s.19(1) duty and the other under s.19(2). Each offence was based on the same facts and could be dealt with globally.

In deciding penalty, his Honour took into account the nature and seriousness of the offence, general deterrence and denunciation, and the significant physical, mental and emotional harm done to each of the 9 victims of the offending, and particularly young children, who were particularly vulnerable.

The magistrate also considered the fact that the victims of the offending (including the worker) were tourists, who were of particular vulnerability as they were required to place their full reliance on the expertise of the defendant. This was a relevant factor under section 9(2)(r) of the Penalties and Sentences Act 1992.

The magistrate took into account by way of mitigation that the defendant had entered an early guilty plea after exhausting its legal options, and that it was a first offence.

He noted that the defendant was not entitled to any reduction of sentence due to its lack of co-operation with the investigation.

He took into account that the company was small and of modest income, but that the effect of any substantial fine, which was warranted based on the gravity of the offence, would be reduced by reference of the fine to SPER.

Considerations for prevention

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

When working in the recreation industry where there is exposure to risks from serious injury due to inadequate maintenance of mobile plant, duty holders should consider the following:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Managing risks of plant Code of Practice 2013 (PDF, 1.57 MB)
• How to manage work health and safety risks Code of Practice 2021 (PDF, 0.65 MB)

Details