In this article, we explore your safety obligations, the potentially severe consequences associated with a breach of those obligations, and effective strategies to mitigate the risk of such a tragedy occurring in your workplace.

In December 2021, a 16 year old apprentice, Kurt Budden, died after being trapped between a truck tray and the vehicle's chassis at work in Chinchilla. The branch manager, acting as the teenager's supervisor requested his assistance in repairing a hydraulic leak on a truck. The manager, Brock Dann, raised the truck and deployed a safety prop to keep the vehicle elevated while they worked on it. After providing the teenager with instructions, Dann left the teenager alone to finish the job. While Dann was away the truck dropped on the teenager causing severe crush injuries which led to his death two days later.

An investigation revealed that Dann had not deployed the safety bar correctly. Dann admitted he did not know how to correctly operate the safety bar as he had never read the manual. Dann was fined $65,000, with no conviction recorded in court. In reaching its decision, the court noted that the risk associated with failing to consult the manual was significant and obvious and Dann failed in his duty as a worker, supervisor and manager to ensure that a young worker was able to safely complete his work.

Under section 19 of the Work Health and Safety Act (WHS Act) a person conducting a business or undertaking (PCBU) has a duty to eliminate or, where elimination is not possible, minimise risks to the health and safety of their workers so far as reasonably practicable. This duty includes, but is not limited to, the requirement for PCBUs to:

• establish and maintain safe systems of work;

• ensure the safe use and storage of equipment, structures and substances; and 

• provide relevant information, training, instruction and supervision necessary to protect workers from any risk to their health and safety arising from the work being carried out.

A failure to comply with this duty is a breach of the WHS Act and opens PCBUs, senior officers and employees up to a risk of prosecution under one of the four categories of offences under the act. A 'senior officer' refers to a wide variety of high rank workers, including directors, secretaries and chief executive officers.

Industrial Manslaughter - Industrial manslaughter arises where a PCBU or senior officer's negligent conduct results in the death of a worker. Liability may still arise for industrial manslaughter where a worker is injured on the job and later dies. The maximum penalty under this offence is $10 million for a company or 20 year imprisonment for a senior officer. 

Category 1 - A category 1 offence arises when a duty holder negligently or recklessly engages in conduct that exposes a worker to a risk of death or serious injury or illness. The maximum penalty for a company is $3 million, for a PCBU or senior officer is $600,000 or 5 years imprisonment, and for an individual (e.g. workers) is $300,000 or 5 years imprisonment.

Category 2 - A category 2 offence arises when a failure to comply with a health and safety duty or electrical safety duty exposes someone to a risk of death, serious injury or illness. The maximum penalty for a company is $1.5 million, for a PCBU or senior officer is $300,000, and for an individual is $150,000.

Category 3 - A category 3 offence arises from a failure to comply with a health and safety duty or electrical safety duty. This offence presents a maximum penalty of $500,000 for a company, $100,000 for a PCBU or senior officer, and $50,000 for an individual.

The penalty awarded is modest when compared to previous cases. 

In R v Jeffrey Owen [2022] QDCSR 168 (Owen), Owen was a PCBU who had attempted to lift a generator from the back of a truck using a forklift without verifying the weight of the generator. As a result, the forklift was overloaded and fell onto a worker causing that worker's death. Owen was charged for negligently driving the forklift without a license, failing to implement written health and safety procedures, and failing to provide proper training, instruction and supervision to the other workers. Owen was sentenced to 5 years imprisonment, to be suspended after serving 18 months.

Similarly, in McDonald v Bell [2020] ICQ 007 (McDonald), a young worker was killed at the Moranbah South Quarry when caught between the bottom of a conveyor and a large metal roller. The company had failed to install safety controls on the conveyor system, failed to provide adequate training and supervision to the workers using the plant equipment, and failed to establish written safety procedures. The company received a fine of $400,000 and the executive officers were fined $35,000 and sentenced to 18 months imprisonment, with a six-month non-parole period.

In comparing these cases there are several key differences which may have contributed to a lower penalty.  One significant factor is the degree of negligence or recklessness that could be attributed to each party. In Owen and McDonald, the defendants held significant  responsibility and had the ability to directly influence workplace safety measures. Owen, as a PCBU, was personally operating the forklift in a dangerous manner without a licence, which directly caused the fatality. In McDonald, the executive officers had clear authority over safety management at the Quarry but failed to implement safeguards which contributed to the fatality. 

Dann's role in the workplace was that of a manager, not an executive officer or PCBU.  As a manager, Dann's decision making power and ability to implement safety procedures was likely limited to operational matters. While managers generally have a duty to uphold and enforce safety policies and procedures, they often comply with the procedures and directions implemented by more senior officers. If there was evidence that Dann complied with existing procedures and had little control over broader safety systems, this could have mitigated his level of fault. Additionally, Dann had fully cooperated with investigators, expressed remorse, took accountability and made an effort to improve his behaviour following the incident. These factors contributed to a decreased penalty.

However, the duties held by Dann do not change. Where a child was killed due to a failure to properly supervise or ensure safety, the case provides important guidance to schools/training organisations who send children into work opportunities, and for employers that engage young workers. 

As PCBUs it is crucial to revisit and reinforce relevant safety protocols and procedures to mitigate the risks to worker health and safety that exist within your workplace. Avoiding a breach of your duties requires you to understand your duties and appropriately act in accordance with those duties.

Risks may be identified by analysing the workplace and the manner in which the work is carried out. Particular attention should be given to work that involves heavy equipment and machinery, sloped or slippery surfaces, or work carried out near unprotected or open edges.

For schools and training agencies who send children into supported work opportunities, and for those employers who host young people in work (whether that be private or public sector employers) there is a duty to protect  against such risks, by ensuring that the host employer can demonstrate its:

1. Safety Protocols: establishing and practicing clear written safety procedures for working with heavy objects, machinery or equipment and for supervising young workers. 

2. Emergency Protocols: establishing emergency response protocols to ensure prompt and effective action in the event of an accident. Where serious injury or death occurs, take the incident extremely seriously, secure the scene, immediately get professional help, and notify the relevant people in accordance with obligations.

3. Safety Training: providing employees and executives comprehensive training on safety procedures, how to appropriately handle equipment and machinery and what to do in the event of an accident or emergency and that the host employer can demonstrate how the training is adapted and suitable for young workers. Questions should also be ask of how supervisors are trained to support and supervise young workers. 

4. Risk Assessments: ensuring that regular risk assessments are completed to identify activities that could potentially cause serious injury or death and implement updated and relevant preventative measures to mitigate those risks. Where having young people in the workplace is a risk, there should be specific risk measures in place to assess and address such risk. 

Please reach out to our Employment and Safety Team if you would like some assistance in identifying and managing the risks to worker health and safety in your workplace.