Blood on Their Hands - When Employers Are Found to be Liable

In June 2020, the Brisbane District Court handed down the first Queensland decision where the industrial manslaughter provisions of the Work Health and Safety Act 2011 (Qld) (‘WHSA’) have been applied. Brisbane Auto Recycling Pty Ltd, along with its two directors have been found liable of committing offences with the company, fined $3 million and the directors have each been sentenced to 10 months imprisonment.

What is Industrial Manslaughter?

In accordance with the WHSA, it is an offence for a person conducting a business or undertaking (PCBU), or a senior officer, to negligently cause the death of a worker. In particular, the offence applies if:

  • a worker dies, or is injured and later dies, in the course of carrying out work for the business or undertaking (including during a work break); and
  • the PCBU’s, or senior officer’s, conduct causes the death of the worker (i.e. the action or inaction of the PCBU, or senior officer, substantially contributes to the death); and
  • the PCBU, or senior officer, is negligent about causing the death of the worker (i.e. the person’s action or inaction departs so far from the standard of care required).

In the decision of R v. Brisbane Auto Recycling Pty Ltd & Ors[1], a 58-year-old worker was struck by a reversing forklift and was crushed between the forklift and a truck. The worker subsequently died eight days later from the injuries that were sustained.

Charges

Brisbane Auto Recycling Pty Ltd was charged with one count of industrial manslaughter where a worker was injured and later died, and its conduct caused the death and was negligent about causing the death of the worker. The directors were each charged with one count of reckless conduct, in that they exposed a worker, to whom a duty of care was owed, to a risk of death or serious injury or illness, and was reckless as to the risk to an individual of death or serious injury or illness.[2]

Whilst the Defendants pleaded guilty to all charges:

  1. They admitted that there were no safety systems in place;
  2. They had advised their staff verbally to be safe and look after themselves,
  3. They had failed to check that the forklift operator was in fact licenced, and merely took his word for it.
  4. No sufficient enquiries were made to determine if the forklift driver was competent and it was discovered that the driver was in fact, inexperienced.
  5. There were minimal attempts to assess and control the risks posed by mobile plant despite these steps being neither complex nor overly burdensome[3].

The Court founds that the directors knew of the risk to the safety of their workers, but consciously disregarded that risk.

Lessons learned

Employers and senior officers should take active steps to ensure that workplaces are safe for all employees, which includes:

  1. Having work health and safety policies in place and ensure they are reviewed regularly.
  2. Ensure all employees have undertaken appropriate training and hold all relevant licences before operating machinery.
  3. Ensure employees understand their obligations under work health and safety policies and hold regular toolbox talks and refresher training.
  4. Instil a positive health and safety culture within your workplace.

Need Help?

If you need help to ensure that you comply with your Work Health and Safety obligations, please contact our legal team for assistance. 

 

[1] [2020] QDC 113

[2] Ibid.

[3] Ibid, paragraph 57.

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