The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 and carried on business of road freight transport delivery, in particular bulk fuel delivery.
On 1 April 2012, an experienced driver recently employed by the defendant company, was delivering bulk LP gas to a service station. To assist with his induction, a director of the company travelled with him.
The vehicle, a prime mover and trailer, appeared to have trouble with releasing its trailer brakes. The deceased went to the rear of the trailer and attempted to release a trailer brake. The vehicle rolled backwards. He was run over and killed.
Investigation by Work Health and Safety Queensland and the Queensland Police revealed the vehicle had a number of problems including a defective warning alarm designed to alert drivers if they left the truck cabin without engaging the prime mover's maxi-brake, akin to a hand-brake.
If left idling or switched off, an air leak in the prime mover's braking system would deplete the air tank and leave the vehicle prone to having insufficient pressure to release the trailer brakes. This was established as the likely cause of the trailer brakes not releasing and the deceased attempting to release them manually.
When the vehicle began rolling backwards on a slight incline, he tried to re-engage the maxi-brake. In doing so he was struck by the trailer wheels.
The defendant pleaded guilty in the Cleveland Magistrates Court on 6 December 2016 to breaching s.32 of the Work health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.
Magistrate Athol Kennedy fined the defendant $60,000 and ordered professional and court costs totaling $1083.20. He also made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 2 years, with a recognisance in the sum of $60, 000 to be forfeited if convicted of an offence within this period. No conviction was recorded.
Magistrate Mr Athol Kennedy, when imposing sentence accepted that the defendant company was experiencing some financial difficulty, had no prior convictions, co-operated with the investigation and after having an application for an Enforceable Undertaking rejected by the Work Health and Safety Regulator had entered an early plea of guilty. For those reasons his Honour saw that the defendant should receive the benefit of an order that no conviction be recorded.
Despite the defendant company breaching work health and safety legislation and properly attracting punishment as a deterrent to it and others, the court also noted that the Victim Impact Statement was supportive of the defendant company and its directors and the deceased's widow, did not blame the company for her partner's death and did not see benefit in the company ceasing to trade in the face of a fine which might cripple it.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
When working in the transport industry where there is exposure to risks from being struck by a prime-mover and trailer moving in an uncontrolled manner, duty holders should apply a risk management approach to ensure the selection of suitable control measures.
Risk management involves identifying 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.
When deciding and implementing control measures associated with the risk of death or injury, obligation holders should consider:
- Work Health and Safety Act 2011
- How to Manage Work Health and Safety Risks Code of Practice 2021 (PDF, 1.02 MB)
- Transport, postal and warehousing
- Date of offence:
- Cleveland Magistrates Court
- Mr Athol Kennedy
- s.32 of the duty under s.19(1) Work Health and Safety Act 2011
- Decision date:
- $60,000 fine and a 2 year court ordered undertaking as per s. 239 of the Work Health and Safety Act 2011
- Maximum Penalty:
- Conviction recorded:
- CIS event number: