Legal

INDUSTRIAL MANSLAUGHTER

CRITICAL LESSONS FOR BUSINESS OPERATORS

On 25 March 2022, a sole trader business operator became the first person to serve actual jail time after being found guilty of industrial manslaughter. The offence of Industrial Manslaughter was introduced in Queensland in 2017 as an amendment to the Work Health and Safety Act 2011.

The sole trader was sentenced to five years imprisonment – but suspended after 18 months of actual prison time.

The reality is that a serious work health and safety breach that results in a worker’s death could land you in jail, whether you are a small business operator or a senior officer/manager in a larger business operation, unless you actively manage your work health and safety risk management processes.

What Happened?

The sole trader was operating a forklift. He intended to lift a three-tonne generator from the back of a delivery truck. Unfortunately, the forklift was rated to lift not more than 2.7 tonnes. The sole trader did not have a licence to operate the forklift.

CCTV footage showed that as the forklift lifted the generator from a truck, the forklift’s rear wheels lifted from the ground and the forklift tilted forward. The generator fell from the forklift, rolled to its side, and struck a worker who was standing next to the forklift. The worker was killed instantly from crush injuries. The worker was a friend of the sole operator and was helping the business on a volunteer basis.

The jury accepted the prosecution’s argument that: 1. the business owner was a ‘person conducting a business or undertaking’; 2. the ‘worker’ (although a volunteer died in the course of ‘carrying out work’ for the owner; 3. the manner in which the forklift was operated, caused the worker’s death; and 4. the sole trader (as the forklift driver) was negligent about causing the worker’s death.

When delivering its verdict, the jury rejected the defence argument the friend was not a “worker” because he was a friend helping. Under the WHS Act, a volunteer is a person acting on a voluntary basis and is a worker if they carry out work in any capacity for a person conducting a business or undertaking (PCBU).

Of course, there wasn’t a company entity that operated the business, so in this particular case, the business owner himself was prosecuted as the PCBU. This does not change the outcome in any significant way because if there had been a company entity involved, the sole trader could have been prosecuted as a director/senior officer – resulting in the same outcome.

The business did not have any documented health and safety procedures for using the forklift or for unloading heavy equipment. The Court accepted prosecution evidence that there were safe alternative methods for unloading the generator and that these alternatives were available at low cost.

That there were low-cost safe alternatives was a significant factor upon which the Judge relied when deciding that the sentence needed to reflect punishment, general and personal deterrence, and denunciation of the failure to take active work health and safety risk management steps. The Judge imposed actual jail time despite recognising that the owner was genuinely remorseful over the death of his friend.

WHSQ’s Approach to Industrial Manslaughter to Date

To date, all directors, senior officers, and sole traders who have been convicted under the industrial manslaughter provisions have had direct personal involvement with the fatality rather than a more hands off “managerial” involvement with the fatalities.

All of the convictions to date have involved smaller business enterprises that have had more limited safety management systems.

This highlights the need, especially for small business enterprises to review and pay attention to their work health and safety systems – particularly if that involves more dangerous work – because the Regulator is clearly more willing to seek jail time in these circumstances.

Critical Lessons for Business Operators

1. It is critical that a business (especially a small business) undertake a thorough risk assessment of all dangerous activities and ensure a safe system of work is established and documented. 2. If as a sole trader, or as a director of a business, you do not clearly understand how to undertake a competent work health and safety risk assessment, it is critical that you educate yourself. You must know how to properly assess the risk of the work tasks you have your workers undertake. This is even more critical for dangerous work tasks (such as operating forklifts or working from heights, etc.). 3. At the very least, identify and implement the manufacturer’s instructions for the safe use of equipment (the manufacturer’s instructions should never be treated as the manufacturer’s opinion) and make sure that your workers do not exceed or work outside the manufacturer’s limits for safe operation (even as a “just this once”). 4. Make sure that your team knows where to access the documented safety procedures and that they understand what is required to safely operate the equipment. Safety procedures can’t be treated as a “we have to have these as a tick box – but go out there and just get the job done the best way you can”. 5. Not having documented safety procedures is a sure way to end up convicted in an industrial manslaughter prosecution. At the same time, having documented safety procedures, but not applying them is also a sure way to end up convicted in an industrial manslaughter prosecution.

It is critical that your business and your senior managers understand the increased risk of liability imposed on them personally from the industrial manslaughter. Ensure that you and your senior managers always take positive and proactive steps to exercise due diligence.

If you are unsure whether you could defend an industrial manslaughter prosecution, contact our office on 07 3223 5900 and arrange for advice on what you must do for your business to eliminate or minimise the risk of jail time in the event of a fatality at your business.

Article written by Robert King – Partner, Brisbane, Cornwalls Law + More

Disclaimer

This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.

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