Industrial manslaughter

Australia’s first industrial manslaughter conviction – a warning to all employers, officers and workers!

The facts of this case beggar belief but serve as yet another warning that anyone who is reckless regarding another’s safety at work risks not only prosecution, hefty fines, loss of employment/reputation etc but potential jail time. The Courts have clearly had enough and are using their powers to send a strong message to the business community at large.

The case: R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 (11 June 2020)

The facts: Barry Wallis, was a casual worker engaged by Brisbane Auto Recycling (the employer) to collect motor vehicles from customers using the employer’s tilt tray truck. Mr Wallis died from injuries sustained when a forklift being driven by an unlicensed worker reversed into him and crushed him against the tilt tray of the truck while he was strapping a load of tyres. He was taken to hospital following the incident but died 8 days later from the injuries sustained.

What made an already tragic situation worse was the two directors of the employer misled paramedics and the worker’s family about how the injuries were sustained with one saying he had fallen one metre from the tray and the other saying this had occurred because the worker had failed to properly secure a car causing it to roll and hit him.

It was not until some days later that the worker’s distressed daughter managed to obtain CCTV footage and, after identifying the real cause of the injuries, notified police who, in turn, notified the safety regulator. The judge described the footage as “incredibly distressing to see Mr Wallis crushed by the force of the forklift”.

It didn’t end there because then one of the directors initially lied about the identity of the forklift driver, presumably because he didn’t hold the correct licence.

The charges: The employer was charged with industrial manslaughter (maximum penalty $10 million) and its two directors were charged with reckless conduct (maximum penalty $600,000 each or up to 5 years jail). The forklift driver has been separately charged with dangerous operation of a motor vehicle causing death (maximum penalty $26,690 or up to 3 years jail).

The judgment: The employer and both directors pleaded guilty to the charges against them and the matter was listed for sentencing before Rafter J of the District Court in Queensland.

His Honour relied on the following evidence:

• The incident wasn’t reported straight away because the directors “didn’t really know about such matters”
• Workers were advised verbally to be safe and look after themselves
• Forklift licences were not checked, the owners relied on what they were told
• The employer had no safety systems in place and, in particular, no traffic management plan despite a number of forklifts operating constantly in close proximity to workers and members of the public
• The driver of the particular forklift was not licenced, insufficient enquiries were made to determine this, he was inexperienced, insufficient assessment was made of his competency to drive a forklift and he was looking forward when he reversed into Mr Wallis

His Honour commented that “whether the inaction by the defendants was due to expedience for commercial gain or complacency, or both, the moral culpability of each is high”. Steps could have been taken to lessen, minimise or remove the potentially catastrophic consequences of the risks. “Those steps were neither complex nor overly burdensome.” Steps have since been taken by the employer the costs of which were quite modest.

His Honour found the two directors consciously disregarded the risks and their offending was “not a momentary or isolated breach.” Given the size of the business the failure to control these risks amounted to recklessness.

The sentence: In sentencing the defendants it was noted:

• None of the defendants had prior convictions
• The directors were 23 and 25 years of age and had both been exposed to extreme violence in Afghanistan before fleeing as teenage refugees. They are now permanent residents of Australia and have worked hard to build up a successful business. A prison sentence could result in them being deported.
• Medical reports as to the mental condition of one of the directors as a result of the incident were considered but not ultimately given significant weight
• “Despite having initially attempted to deflect responsibility in a somewhat inept manner [both directors] have cooperated with the investigators, entered early guilty pleas and ..are clearly remorseful…They are both relatively young men with strong mitigating factors”.

The penalties imposed: The employer was fined $3 million (the largest work health and Safety fine ever imposed in Australia) and the directors were both sentenced to 10 months imprisonment wholly suspended for 20 months to allow them to stay in the community.

Industrial manslaughter laws in Australia: All states and territories except South Australia and Tasmania have now enacted forms of industrial manslaughter laws.

Most recently the NSW Work Health & Safety Act has been amended with effect from 10 June 2020 to (amongst other things):

• Include “gross negligence” as a fault element in Category 1 offences to make it easier to bring prosecutions under this Category and to provide even greater incentive to duty holders to manage risks
• Make it clear that in certain circumstances the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act (punishable by imprisonment for 25 years). This was considered sufficient instead of introducing an industrial manslaughter offence
• Prohibit insurance or indemnity against WHS penalties and deem officers liable for the same offence if they have been directly or indirectly involved in the breach
• Increase the penalty amounts for all WHS offences so that maximum penalties will increase with the CPI. This has increased the maximum penalty for a body corporate to $3,463,000 (still a long way short of the maximum penalty in Victoria from 1 July 2020 of $16 million and Queensland of $10 million)

What does this mean?  To put it bluntly it means that if you aren’t already taking safety seriously then you MUST get your house in order. There are no excuses, the penalties are getting more serious and the Courts aren’t afraid to impose them!