Details of successful prosecution against E232429

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 being a business supplying building material including timber housing construction products.

Transported loads of timber and associated building products are regularly delivered to the defendant's warehouse workplace and unloaded, via forklift, from delivery trucks by the defendant's workers. On 5 September 2016 a worker using a forklift was unloading from one side of a truck while the driver was located on the opposite side of the truck, out of view, releasing a loading strap. Whilst attempting to lift a bundle of timber the forklift operator dislodged another bundle of timber which fell from the side the driver was on. The load struck and killed the driver.

Court result

On 12 December 2019, the defendant pleaded guilty in the Townsville 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 Wadley fined the defendant $210,000 and ordered professional and court costs totalling $1092.55. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate considered the offending was serious and that the defendant was solely responsible for the breach. Her Honour considered the defendant's culpability as medium-high with consequences (from the breach) catastrophic. Her Honour considered general deterrence loomed large with specific deterrence less of a consideration given the post incident measures implemented. The steps the defendant had to take to address the risk could only be considered mildly inconvenient and not burdensome with only minimal cost likely to be incurred.

In deciding penalty, Magistrate Wadley 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. She acknowledged the defendant was a small company, had demonstrated genuine remorse and was a good corporate citizen. Her Honour did not consider the breach was a serious dereliction of the duty held by the defendant company; the breach occurred through the defendant solely relying on its experienced workers carrying out their duties in a safe manner; it arose through a lack of adequately engaging in the risk management process. Her Honour accepted that the recording of a conviction would have adverse economic implications for the defendant company and exercised her discretion not to record one.

Considerations for prevention

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

When working in the wholesale trade industry where there is exposure to risk of death to workers from crush injuries during the unloading of freight. Duty holders should consider the following:

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

Details