June 29, 2020

Background

In the recent decision of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 Judge Rafter SC of the District Court in Brisbane dealt with a matter with offences pursued against Brisbane Auto Recycling Pty Ltd (“the Employer”) and its two Directors, Mr Hussaini and Mr Karimi.

The Court noted that the Employer had been charged with one count of industrial manslaughter pursuant to section 34C of the Workplace Health and Safety Act 2011 (Qld) (“the Act”) with respect to the death of a worker, Mr Barry Willis (‘the worker’). The Court also dealt with charges against the two Directors pursuant to section 31 of the Act related to ‘reckless conduct’.

The Employer and its Directors entered a plea of guilty to these offences and so the Court only had to decide the penalty to be imposed which required consideration of the facts and circumstances leading to the death but also the conduct of the Employer thereafter.

The Court noted that the worker sustained fatal injuries at the Employer’s premises at Rocklea on 17 May 2019 when he was struck by a forklift which was being driven by another worker, Mr Yaqubi.  The Court noted CCTV footage captured the worker being crushed between the rear of the forklift and the tilt tray of his truck and importantly the forklift driver was seen to be looking forwards up until the point the worker was struck.

Mr Hussaini came onto the scene and then returned to the office and returned with a mobile phone and called an ambulance and the Court noted that he informed the operator that Mr Willis had ‘…fallen a distance of approximately one metre from the back of the truck’.  A similar account was given to the attending ambulance officers.

The Court accepted that at some point in the hours after the event Mr Hussaini became aware of the precise mechanism of injury but he did not inform the Queensland Ambulance Service or any of the treating doctors of that fact. On 17 May 2019 the Directors, Mr Hussaini and Mr Karimi, attended the hospital where the worker was being treated and spoke to his daughter who was told the worker had fallen from the back of the truck.

The Court noted on 18 May 2019 the Directors attended upon the hospital again and Mr Karimi spoke with the worker’s family who asked for a copy of the CCTV footage and this conversation was found to have occurred:

He proposed that a version of the incident could be put, that Mr Willis did not winch a car properly and that it rolled back onto him. Ms Cleeland [family member] refused to agree to the proposal and Mr Karimi said he did not wish to get Mr Willis into trouble. Mr Hussaini did not hear this conversation.[1]  

The Court accepted that members of the worker’s family eventually viewed the CCTV footage and it was at that point that they learned the true circumstances of the worker’s death.[2]

The Court noted that an attending doctor found that the injuries sustained by Mr Willis were not consistent with a fall from a truck and his injuries were more consistent with being involved in a high impact incident such as being hit by an object or vehicle.

During the WHSQ investigation Mr Hussaini made admissions to the affect that there were no written safe procedures or policies within the workplace. The Court was critical and observed:

When asked who managed the safety of workers, he said that he advises them verbally to be safe and to look after themselves. He said that the forklift operators are required to be licensed, although he had not seen the workers’ licences and simply relied on what he was told.

Further, the Court accepted Mr Hussaini’s admission to WHSQ that there was no WorkCover policy ‘…because he was not aware of the requirement to have one’.

The Court noted the Statement given by Mr Karimi to Police which identified that he was not onsite at the time of this incident but found this did not reduce his culpability.

The Court accepted the WHSQ investigation which identified that the company had no safety systems in place, there was no Traffic Management Plan at the worksite despite a number of forklifts operating constantly in close proximity to workers and members of the public. The Court noted that the WHSQ investigation also identified that the forklift driver in question did not hold a ‘high risk work license to operate a forklift’. The Court also noted that there had been no ‘sufficient assessment of his competency to operate a forklift’.[3]

The Court found that both Directors were in their early to mid 20’s during the period leading up to the death of the worker, each held a 50% shareholding in the company and both supervised work activities at the workplace.

The Law

His Honour observed that the Act required ‘… a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers at the workplace’. His Honour went on to note:

Compliance with all duties under the Work Health and Safety Act 2011 (Qld) must be to the extent that compliance is reasonably practicable. Reasonably practicable means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including –

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about

(i)           the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.[4]

The Court noted that the offence of industrial manslaughter pursuant to section 34C of the Act commenced from 23 October 2017 provided:

  1. A person conducting a business or undertaking commits an offence if—

(a) a worker—

(i) dies in the course of carrying out work for the business or undertaking; or

(ii) is injured in the course of carrying out work for the business or undertaking and later dies; and

(b) the person’s conduct causes the death of the worker; and

(c) the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a) for an individual—20 years imprisonment; or

(b) for a body corporate—100,000 penalty units.

2. An offence against subsection (1) is a crime.

The Court noted that the two Directors also pleaded guilty to reckless conduct pursuant to section 31 of the Act.

Key findings

His Honour found that whatever the reason for the absence of safety systems, whether inaction due to ‘expedience for commercial gain or complacency, or both, the moral culpability of each is high’ and that each of the Directors knew or ought to have known of the potential consequences of such a catastrophic risk. The Court held there were reasonably practical and affordable steps the Defendants could have put in place before this event and that in the aftermath of it some safety measures were deployed.

The Court noted that the offending by the two Directors was not a ‘momentary or isolated breach’ but rather a prolonged period of offending from January 2018 to 17 May 2019.

His Honour noted that in the sentence imposed he needed to make it clear to persons conducting business or undertakings and to the officers in such endeavours, that a failure to comply with obligations under the Act leading to workplace fatalities could result in severe penalties. His Honour ordered that the Employer be fined $3,000,000.00 whilst the Directors were each convicted and sentenced to 10 months imprisonment (full suspended).

Summary

This case serves as a warning to those in control of workplaces to ensure compliance with work, health and safe legislation and provides a serious reminder that offences under the Act can result in more than just a financial penalty: your liberty is at stake.

This traumatic event serves as an important reminder that employers must be alert to their legal obligations with respect to the provision of a safe system and place of work. The fine of $3,000,000.00 is the highest workplace health and safety fine in Australia for the offence of industrial manslaughter thus far.

Employers must be aware: inaction in regards to health and safety (whether for commercial gain or due to complacency) carries with it a high moral culpability.

It is also worth noting that the Employer failed to take out a WorkCover policy as required by section 48 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA).  It is a timely reminder to employers of section 50 of the WCRA which provides that an employer (not a self-insurer) contravenes the Act if within 5 business days after starting to employ any worker it has not applied for a WorkCover policy or, having taken a policy, fails to maintain that policy at all times whilst being an employer.[5] It is also a timely reminder with respect to section 57 of the WCRA which imposes potential penalties including:

  1. The amount of the unpaid premium with a 100% uplift; and/or
  2. The amount of compensation or damages paid with a 50% uplift.

[1]     As above at [30]. – [Our emphasis added]

[2]     As above at [34].

[3]     As above at [42].

[4]     As above at [45].

[5]     Section 50(a) and (b) of the WCRA.