Queensland’s first Industrial Manslaughter conviction serves as a warning for all company directors.
A company operating a Brisbane based car wrecking yard has become the first defendant sentenced in Queensland for the offence of industrial manslaughter. The company, Brisbane Auto Recycling Pty Ltd (“BAR”) was convicted and fined $3 million.
The industrial manslaughter offence was introduced by the Queensland Government as part of the Work Health and Safety Act 2011 (Qld) (“the Act”) on 23 October 2017 following a series of workplace fatalities including the death of two workers at Eagle Farm Racecourse in 2016.
BAR’s two company directors were also convicted of reckless conduct which exposed a person to the risk of death or serious injury and were each sentenced by the District Court of Queensland to 10 months imprisonment. The sentences were wholly suspended for an operational period of 20 months.
The charges brought against the company and directors followed an incident on 17 May 2019 when a worker Tiger Barry Willis was struck by a reversing forklift operated by an inexperienced and unlicensed driver. Mr Wills was crushed between the forklift and a tilt tray and died from the injuries he sustained.
The Office of the Work Health and Safety Prosecutor brought the charge of industrial manslaughter against BAR on the basis that it caused the death of Mr Willis by failing to effectively separate pedestrians from mobile plant and failed to effectively supervise workers, including operators of mobile plant.
The charges brought against each of the directors alleged that they failed to ensure that the company had appropriate systems in place to ensure pedestrians were separated from mobile plant and that workers were effectively supervised.
The Court found that there was no real attempt to assess or control the risks posed by mobile plant. The company had not implemented any work health and safety systems to protect its workers and had only given a verbal instruction to “work safely”.
Following the death of Mr Willis, the directors belatedly engaged a consultant to develop a risk management system. The report of the consultant indicated that in addition to supervision, the company could have complied with their duties under the Act at a modest cost by installing signage, plastic bollards and marked exclusion zones. By failing to implement these measures, the Court considered the director’s culpability was high.
The sentences imposed should make it clear to persons conducting a business or undertaking, that a failure to comply with obligations under the Act leading to workplace fatalities will result in severe penalties.
Measures that directors can take to comply with work health safety laws include implementing and auditing safety management systems. One organisation we often deal with that can assist Employers with ensuring appropriate safety management systems are in place is InterSafe. Macrossan and Amiet has had a long association with InterSafe including in the investigation of workplace accidents that are the subject of court proceedings.
The costs of court proceedings and any penalties imposed can often be quite significant. This cost can often be mitigated through appropriate insurance coverage which may extend to the costs of defending prosecutions brought under the Act. Some insurance cover against penalties is also available but that will not remove the risk of personal liability for directors who may be exposed to risk of imprisonment.