In March of this year, we reported on an important decision about increased work health and safety fines in Queensland. This followed the District Court of Queensland’s decision in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56. In that decision, the District Court of Queensland held that Queensland Magistrate Courts must take into account penalties imposed in other work health and safety harmonised jurisdictions.

The Court held that the national harmonised system was intended to create a uniform penalty regime across Australia.

In our March update, we said that Queensland businesses can expect a significant increase in penalties as Magistrates begin to apply the District Court of Queensland’s decision. Now, a recent Brisbane Magistrates Court decision shows that the penalty increase is definitely on.

An individual (who was a PCBU operating a tree lopping business) has been fined over a customer’s death.

The Brisbane Magistrate considered penalties from multiple harmonised jurisdictions. The individual was fined $80,000 (plus $1086 in costs) from a maximum $300,000, after pleading guilty to breaches of the Work Health and Safety Act 2011. The equivalent penalty for a Corporation is five times the penalty for an individual. Had this decision involved a company, the equivalent fine would amount to $400,000.

The Magistrate’s decision

The individual was engaged to cut and lop eight trees in a home’s backyard. He allowed untrained people – including his wife and the home occupier – to assist with groundwork to reduce costs. The individual climbed up a tree and cut an 18.5-metre limb weighing 380 kilograms. His wife and the home occupier held the end of the limb’s lowering rope 16 metres away.

The cut limb fell however, and bounced off a second tree and struck the home occupier, crushing him and inflicting fatal injuries.

The Magistrate found that the individual:

  • failed to provide a safe system of work that managed the risk of falling branches; and
  • should have taken steps such as tying off the large limb and removing all people from the fall zone, even if that increased the risk of damage to nearby structures and vegetation.
 
While the Court acknowledged that the individual’s offences weren’t deliberate, it held that he was negligent in failing to properly manage risks and implement available controls in a high-risk working environment. The untrained assistants would have had limited ability to assess and avoid hazards, the Court added.

In determining the penalty the Court considered penalties imposed in cases from other harmonised jurisdictions, in accordance with Williamson v VH & MG Imports Pty Ltd [2017] QDC 56. The Magistrate examined SafeWork NSW v Grant [2017] NSWDC 99, in which the NSW District Court convicted and similarly fined an individual PCBU $80,000, after a worker fell more than 10 metres from a tree and sustained severe brain injuries.

The Court did not record a conviction against the man, after considering his previous good safety record, cooperation with investigators and early guilty plea.

Since the clear increase in penalties is underway, Queensland businesses must ensure that they undertake proper risk management. This requires a deliberate and proactive process to:

  • identify the hazards;
  • evaluating the consequences and likelihood of harm that may result from the hazard;
  • deciding and implementing control measures to prevent or minimise the level of the risk from the hazard; and
  • monitoring the effectiveness of the control measures to ensure they remain working correctly.
 
The costs of failing to actively manage risks is now significant – far more significant than the likely costs imposed on a business to actively engage in work health and safety management.
 
If you have any further questions, please contact one of our experienced employment lawyers.