Details of successful prosecution against E249870

Incident description

The defendant individual operated a banana farm. The business was a family partnership established in 2006, but the defendant was responsible for its day to day running.

On 13 November 2017 a worker died when the tractor he was operating went over the edge of an embankment along a farm road. The worker left the seat of the tractor, fitted with a Rollover Protection Structure (ROPS) but no seatbelt. It is likely a wheel of the tractor, which remained upright, ran over him. The tractor was towing an empty 5.5 metre banana trailer. It is not known if he was thrown from the seat or jumped.

The worker was very experienced in operating tractors in Australia and overseas and his history slowed he was a sensible operator.

Although the incident was not witnessed, tracks suggested he attempted a U-turn towards the outside of the road. The defendant had instructed all workers who operated tractors they were prohibited from performing U-turns on the road, directing them to turn inwards into the bananas, reverse and complete a 3-point turn.

Due to steps taken by the defendant and evidence the deceased was an experienced individual who did not follow reasonable instruction and made substantial contribution to the incident, the offence charged was under section 215(2) of the Work Health and Safety Regulation 2011, namely failing to ensure a suitable combination of operator protective devices is provided maintained and used. Investigation concluded that despite the tragic outcome the public interest was adequately served by prosecution for a regulatory breach.

Court result

On 19 February 2019, the defendant pleaded guilty in the Innisfail Magistrates Court to breaching s.215(2) of the Work Health and Safety Regulation 2011.

Magistrate McLennan fined the defendant $4,000 and ordered professional and court costs totalling $1295.80. The court ordered that no conviction be recorded.

Magistrate McLennan noted there could have been a more serious offence brought. Although the lack of a seatbelt ought to have been apparent to the defendant, due to significant steps he took relevant to safety and the contribution the deceased made to the incident, the offence was under s215(2) Regulation.

That meant that, although a Regulation breach, it could be regarded as carrying significant objective gravity with general deterrence being important.

But for the defendant's good record, his remorse and the fact he tried to assist the deceased's family after the incident, his co-operation with the investigation and his entry of an early plea of guilty her Honour noted a higher penalty could have been applied. The court made an order that no conviction be recorded.

Considerations for prevention

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

When deciding and implementing control measures associated with the risk of being ejected from mobile plant, duty holders must consider the manufacturer's requirements for operating such plant, including the wearing of a seat belt.

Details