Queensland’s first industrial manslaughter sentence

The fatality

The 58-year-old worker, Barry Willis, was crushed into a truck by a reversing forklift operated by another worker. Mr Willis died eight days after the incident from the injuries he had sustained. The incident was captured by CCTV used on the site.

A copy of the CCTV was provided to Mr Willis’ daughter who identified the cause of the injury and notified Queensland Police. Treating practitioners also notified the police that the injuries sustained by Mr Willis were not consistent with a report prepared by the first responding paramedic, who relied on statements provided by the company directors as to the cause of the injury. Work Health and Safety Queensland (WHSQ) were subsequently notified of the incident by the police and commenced an investigation.

The investigation

A director of the company, Mr Hussaini, was interviewed by WHSQ and made a number of admissions including that:

• the company did not have any written safety policies or procedures within the workplace;
• he didn’t know that he needed to immediately report the incident to WHSQ;
• workers would be orally told to ‘be safe’ and look after themselves as a means of managing work health and safety;
• he did not confirm that workers operating forklifts held the required licenses, but instead relied on what he was told by the workers; and
• he was not aware of the requirement to have a WorkCover policy and thus did not have one.

The investigation found that at the time of the incident the company had no safety systems in place and no traffic management plan for the worksite, at which forklifts operated in close proximity to both workers and the public. In addition, the operator of the forklift that struck Mr Willis was inexperienced, did not hold a high risk work licence as required, and neither he nor the company undertook any assessments to determine his competency to operate the forklift.

Sentencing

The maximum penalty for an offence of industrial manslaughter under the Act is $10 million for a PCBU. The court took into account factors including that the company was behind in superannuation contributions and did not have a WorkCover policy, however it had no prior convictions. Ultimately the company was fined $3 million.

Judge Rafter SC determined that “[b]y their pleas of guilty Mr Hussaini and Mr Karimi accept that they knew of the risk to the safety of their workers, but consciously disregarded that risk”.¹ The early guilty plea was taken into account and contributed to a reduction in their sentence. In addition, as the directors’ offences of reckless conduct did not directly cause the death of Mr Willis, the sentencing judge applied the principle that a sentence of imprisonment should only be imposed as a last resort, and that a sentence which allows an offender to stay in the community is preferable.² He also took into account factors such as the young age and circumstances of the two directors, the lack of any prior criminal history, and their good standing within their community.

Accordingly, both directors’ sentences (10 months each) were wholly suspended, with the condition that they must not commit another offence punishable by imprisonment within 20 months. The maximum penalty for a category 1 offence under the Act is 6,000 penalty units (approximately $800,000) or 5 years imprisonment. The visa status of both directors’ was also taken into account, because a sentence of 12 months or more could give rise to a risk of deportation.³

Judge Rafter SC said that the sentence imposed should make it clear to PCBUs that “a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to workplace fatalities will result in severe penalties”.⁴

Lessons for duty holders

This case reinforces the importance of compliance with work health and safety duties, in particular the requirement to have safety management systems. By pleading guilty, the company acknowledged that its negligent conduct substantially contributed to the death of Mr Willis. The directors, as officers of the company, recklessly failed to exercise their duty of due diligence to ensure that the company met its work health and safety obligations and in doing so exposed workers (including Mr Willis) to a risk of death.⁵

Key failings of the directors in this case included:

• giving false information to first responders, and failing to correct that information when it became clear that it was false;
• failing to report the incident to WHSQ;
• misleading next of kin about the cause of Mr Willis’ injury; and
• knowingly providing a false name of the forklift operator involved.

The absence of any written work health and safety policies or safety management system, and failures to put in place a risk assessment or controls for moving plant, contributed to the lack of safety culture within the business. These failings and the directors’ attitude to safety amounted to recklessness and the court concluded that their actions were “designed to deflect responsibility”.⁶

As part of the management of work health and safety, it is important that companies establish both safe systems of work and an incident response plan. In this case, neither was present.

In the wake of a critical incident, there are various stakeholders involved, including first responders, medical professionals, the Regulator, investigators (possibly including police) and next of kin. As situations quickly unfold, the scene of an incident can become chaotic but the PCBU must maintain control and act in accordance with its obligations. A clear and pre-prepared plan on how to manage responsibilities, roles and actions is critical.