The District Court of Queensland has recently handed down its first conviction for an offence under the industrial manslaughter provisions introduced in the Work Health and Safety Act 2011 (Qld) (“the Act”) in October 2017.

Brisbane Auto Recycling Pty Ltd and its two directors, Asadullah Hussaini and Mohammad Ali Jan Karimi were charged with the offences under the Act on 3 April 2020 following the death of a worker, Mr Barry James Willis at the business premises on Marshall Road, Rocklea.

On 17 May 2019 Mr Willis was struck by a forklift being reversed by co-worker, Mr Yaqubi, crushing him between the forklift and a tilt tray truck.  Mr Willis was taken to hospital and died from his injuries eight days later.

The tragic incident was captured on closed circuit cameras.  In a simplified overview of the preceding events, two of the company’s three forklifts had been in use around the delivery area where Mr Willis was unloading tyres from the tilt truck.  Mr Yaqubi reversed the forklift without properly watching the direction the forklift was travelling when Mr Willis was struck.

Brisbane Auto Recycling

Brisbane Auto Recycling Centre Pty Ltd (‘BAR’) was charged with industrial manslaughter as a Person Conducting Business or Undertaking (PCBU), in contravention to s 34C of the Act.  A conviction was recorded against the company and the company was fined $3 million.  The court concluded BAR caused the death of Mr Willis because it:

• failed to control the interaction of mobile plant and workers at the workplace;
• failed to effectively separate pedestrian workers and mobile plant; and
• failed to supervise operators of moving plant.

The maximum penalty for an offence by a body corporate is a fine of $10 million and for an individual, 20 years imprisonment.

The court concluded a fine of $3 million as appropriate as a “lesser fine would not deter others”.  Despite the company not having the capacity to pay the $3 million fine, the court considered that this was not grounds to “preclude the imposition of an appropriate fine”.

Directors

Both Mr Hussaini and Mr Karimi were charged with “reckless conduct” contrary to s 31 of the Act and were sentenced to 10 months imprisonment (wholly suspended for a period of 20 months).

The court concluded the Directors engaged in conduct designed to deflect responsibility for the accident as:

• Mr Hussaini deliberately named Mr Athar as driver of the forklift when he must have known the driver was Mr Yaqubi;
• Mr Hussaini told an emergency operator Mr Willis fell from the back of a truck (not correcting the information when the truth became apparent);
• Mr Karimi told Mr Willis’ daughter at the hospital that Mr Willis had fallen from the truck; and
• Mr Karimi suggested to Mr Willis’ daughter that review of the CCTV footage might not be required, and that Mr Willis was responsible for the incident.

The following admissions were made during the WHSQ investigation:

• there were no written safety policies or procedures within the workplace;
• Mr Hussaini assumed without proper enquiry that Mr Willis fell from the back of the truck;
• Mr Hussaini was not aware of the requirement to immediately report the matter to WHSQ;
• only verbal safety instructions were provided to workers to “be safe and to look after themselves”;
• the directors’ relied on the word of workers that they had appropriate forklift licences;
• Mr Hussaini continued to maintain that Mr Athar was operating the forklift;
• There was no WorkCover policy due to a lack of awareness of the requirement.

The conclusion of the WHSQ investigation revealed that:

• Brisbane Auto Recycling Pty Ltd had no safety systems in place;
• there was no traffic management plan at the worksite, despite several forklifts operating constantly near workers and members of the public;
• Mr Yaqubi did not hold a high-risk work licence to operate a forklift;
• Brisbane Auto Recycling Pty Ltd had not made sufficient enquiries to confirm licence requirements; and
• Mr Yaqubi was inexperienced, and there was no sufficient assessment of his competency to operate a forklift.

The maximum penalty for a reckless conduct – category 1 offence committed by an individual officer of a PCBU is a fine of $600,000 or 5 years imprisonment.

The court stated that the “gravity of the offending and the moral culpability” of each defendant was high.  However, the court took into consideration, despite the directors’ initial conduct, the fact that the directors were subsequently remorseful, cooperated with investigators and entered early pleas of guilty.

The court also considered the personal circumstances of the directors as mitigating factors, such as their:

• upbringing had been in Afghanistan;
• prior good character; and
• the impact imprisonment could have on the risk of deportation.

This case is an important reminder that the Act now contains industrial manslaughter offences for PCBU’s and senior officers.  A PCBU, senior officer and any person with health and safety duties under the Act should ensure they understand their responsibilities and the importance of their conduct.

Aitken Legal recommend directors and senior officers make health and safety a workplace priority and consider seeking specialised employment law advice from one of our experienced lawyers to minimise the risk of contravening the Act.