Australia’s first industrial manslaughter conviction – Lesson for Employers

10 July 2020

On 11 June 2020, the District Court of Queensland handed down the first industrial manslaughter conviction under the Work Health and Safety Act 2011 (QLD) (WHS Act).

Brisbane Auto Recycling Pty Ltd (Brisbane Auto), was fined $3 million.

Mr Hussaini and Mr Karimi who were the directors of Brisbane Auto were convicted under sections 27 and 31 of WHS Act and were each sentenced to 10 months’ imprisonment, wholly suspended for 20 months.

The Court’s decision highlights the importance of having safety systems and processes that correspondence to the risk of the operations of the company.

By: Luisa Gonzaga (Partner) and Alexandra Gonos (Employment Lawyer)

R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113.

Background

On 17 May 2019, an unlicensed worker of Brisbane Auto was operating a forklift when it, struck Mr Willis crushing him between the back of the forklift and the tilt tray (Incident). Mr Willis died from the injuries he sustained eight days later.

The Incident was a notifiable incident as defined under the WHS Act. 

Following the Incident, Workplace Health and Safety Queensland regulator (WHSQ) made enquiries into the Incident and found that:

  • Brisbane Auto had no written health and safety policies and procedures within the workplace;
  • workers were only verbally directed to “be safe” as a means of managing health and safety;
  • Mr Huissaini was not aware of his duties to report a notifiable incident to WHSQ after becoming aware of such incident;
  • Brisbane Auto forklift drivers were unlicensed and unqualified to operate a forklift and it failed to make proper enquiries to confirm whether they held appropriate licences; and
  • Brisbane Auto had no traffic management plan to ensure there was clear delineation between pedestrian and mobile plant.

Brisbane Auto pleaded guilty to the charges acknowledging that its negligent conduct substantially contributed to the death of Mr Willis under section 34C of the WHS Act.  

Decision

The Court found that the conduct of Brisbane Auto caused the death of Mr Willis because it failed to:

  • control the risk between the interaction of mobile plant and workers at the workplace;
  • effectively separate pedestrian workers and mobile plant; and
  • effectively supervise operators of moving plant and workers.

In addition, it found the directors were reckless in exposing its workers and members of the public to risk who had access to the workplace.

The Court in making a finding of guilt against the directors of Brisbane Autos noted that they had knowledge of the risks and it had consciously disregarded such risk.

The Court stressed that:

  • the available steps to minimise or remove the risk posed by the mobile plant were not “complex nor overly burdensome”; and
  • the offending by the directors was not a “momentary or isolated breach” and in considering the growth of the business since 2016, their inaction over an extended period of time to ensure risk was controlled, amounted to recklessness.

Sentencing considerations

In determining the appropriate sentence, the Court had regard to the “high” moral culpability of the directors of Brisbane Auto. However, 10 months imprisonment was suspended for 20 months against the available five year maximum penalty. In reaching the sentence, the Court had regard to the directors:

  • cooperation with the prosecution;
  • had no prior convictions; and
  • personal circumstances, including their former refugee status and risk of deportation.

The Court accepted that general deterrence was paramount, to send a clear message that workplace safety obligations must be taken seriously by employers.

What is the lesson for employers?

While the circumstances involved in this case were clearly a textbook prosecution, the decision is a stark reminder that persons conducting a business or undertaking and its officers who fail to comply with the obligations under WHS laws causing a workplace death will result in severe penalties.

The District Court’s decision is a reminder for employers to:

  • ensure written policies and procedures are in place, including incident response plans, which are consistent with the duties under WHS laws;
  • ensure there are processes in place confirming workers are appropriately qualified and licensed, and that a robust induction concerning safety risks are provided prior to any works being undertaken;
  • have in place ongoing monitoring and evaluation of systems and process; and

  • provide ongoing necessary information, instruction, supervision and training and re-enforce these on an ongoing basis.

Hentys Lawyers welcomes the opportunity to provide training for managers and directors about their WHS obligations and the operation of Industrial Manslaughter Laws in each State and Territory.

For further information, please contact our experienced Occupational Health and Safety by emailing hjk@hentys.com.au.