23 June 2020
The Queensland District Court has recently imposed a significant fine of $3 million on a company for industrial manslaughter in the case of R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113, as well as imposing a 10-month term of imprisonment (wholly suspended for 20 months) on each of the two directors of the company who were convicted of reckless conduct.
The prosecution of the company and its directors under the Work Health and Safety Act 2011 (Qld) (Act) was brought following the death of a 58-year-old worker in May 2019 who was struck by a reversing forklift. A third man, who was driving the forklift, has been charged with dangerous operation of a motor vehicle causing death. At the relevant time, two forklifts were being used to reposition car bodies in the main delivery area of the workplace while another worker, Mr Willis, was working next to a vehicle in close proximity. As one forklift reversed to allow the other to pass, Mr Willis was crushed against the tray of the vehicle where he was working and later died of his injuries. Some of the relevant features of the case include that there were “no safety systems in place”, that the forklift driver was not properly licensed, that there was inadequate supervision of work and that there was a general failure in the “attitude to safety at the workplace” by the directors.
The offence of industrial manslaughter under the Act is defined as negligent conduct that causes, or substantially contributes to, the death of a worker, and a prosecution may be brought against a body corporate or individual senior officer. It carries a maximum penalty of over $10 million dollars for a company, or 20 years’ imprisonment for a senior officer.
Importantly, while the failures of the directors, as well as the forklift driver, were imputed to the company, it was not alleged that the directors themselves caused the death of Mr Willis. They were instead charged with reckless conduct, a less serious charge but one that carries significant maximum penalties including imprisonment.
The directors had failed to ensure that the business had any effective safety systems in place. His Honour Judge Rafter SC found that, in pleading guilty to this offence, the directors accepted that they knew of risks to their workers and “consciously disregarded” those risks. A Category 1 offence for reckless conduct exposing a worker to risk of death or serious injury has existed in Queensland since 2012. Like industrial manslaughter, this offence is defined as a crime and attracts serious penalties, with a maximum penalty of over $3 million for a company, and a fine of up to $600,000 or 5 years’ imprisonment for a senior officer. The convictions of reckless conduct against the directors in this matter are also among the first in Queensland, with one previous conviction against an individual director for reckless conduct involving another workplace death being overturned on appeal and a retrial ordered in 2019 (R v Lavin  QCA 109).
Underscoring the tragic and unnecessary nature of the death, his Honour Judge Rafter SC noted that the risk management system implemented by the company after the incident on the advice of a consultant “consisted of little more than the installation of signage, plastic bollards and marked exclusion zones” and (together with a system of supervision) was, therefore, “neither complex nor overly burdensome”.
In imposing a fine of $3 million on the company and a 10-month term of imprisonment with respect to each of the directors (wholly suspended for a period of 20 months), his Honour took a number of factors into account, including:
Importantly, in addressing the issue of general deterrence, his Honour’s remarks were as follows:
“The sentences imposed should make it clear to persons conducting a business or undertaking, and officers, that a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to wokplace fatalities will result in severe penalties.”
Conclusion and lessons for employers
Queensland was one of the first jurisdictions in Australia (after the ACT) to introduce industrial manslaughter and this has been followed by legislation passed in Victoria and Northern Territory. As noted in this case, there were “no comparable sentences for industrial manslaughter” to which the court could refer. Therefore, this case represents a significant milestone for work health and safety laws in Australia and a benchmark for future prosecutions.
There continues to be significant numbers of workplace fatalities in Queensland each year and, in response to a number of recent fatalities in the mining industry, the Queensland parliament has passed the Mining and Energy Resources and Other Legislation Amendment Act 2020 which introduces the offence of industrial manslaughter to the mining industry, which had previously been exempt. On this basis, it can be expected that more industrial manslaughter prosecutions will follow.
However, the circumstances in this case, including the complete failure of the directors to implement any safety measures, make it fairly unusual and probably distinguishable from most operations in which some level of risk assessment and mitigation is implemented. This highlights the fact that industrial manslaughter prosecutions are likely to continue to be exceptional, albeit negligent conduct causing death could potentially be established where safety systems are in place but, for example, are consistently flouted or ignored. This case reinforces that:
Click here to read more about the case.
Author: Kirinya Khamsone
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