At approximately 10:30 am on 10 April 2013, a worker employed by the defendant sustained head injuries while pressure testing the tank compartment of a road fuel tanker. The injured worker recalled very little about the incident but recalls following procedure for the pressure testing when the hatch blew of the tank striking him in the head.
The defendant did not notify the regulator in any manner. WHSQ only became aware 17 months and 10 days after the incident when it was notified by lawyers acting for the injured worker. The actions of the defendant were serious given it was aware of its obligation to notify and exacerbated because the injured worker's stepfather was a managing director. The defendant entered into voluntary administration within months of WHSQ being notified.
Prosecution submitted the mischief was that the actions of the defendant effectively hindered any chance of proper investigation.
The defendant emailed the court indicating the facts were not disputed and that the defendant would not be attending. The matter proceeded on an ex-parte basis at Toowoomba Magistrates Court on 2 June 2017.
Magistrate Lee fined the defendant $25,000 and ordered professional and court costs totaling $1589.40. A conviction was recorded.
The Magistrate referred to the facts and noted the injury was serious. He had reservations about dealing with the matter ex-parte because of the serious nature of the offending, but accepted the inability to investigate fully and the defendant's financial difficulties.
The Magistrate observed the Prosecution fairly indicated that a section 39 (fail to preserve incident site) was also an available charge but appreciated the seriousness of the section 38 matter, in that there could be no real investigation possible after 17 months 10 days. The matter was at the more serious end of the scale of offending. The Magistrate said the matter was serious enough alone even without the injuries.
Magistrate Lee did however take into account the defendant had not been prosecuted previously for any work health and safety breach. Given the maximum penalty involved, even taking into account the company's good record, public interest required general deterrence.
Notwithstanding the defendant's good prior record, in the circumstances, the defendant did not qualify for an order under s.12 of the Penalties and Sentences Act 1992 that no conviction be recorded.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
Persons conducting a business or undertaking may be legally required to notify Workplace Health and Safety Queensland (WHSQ) about an injury, illness or dangerous incident if it happened at the workplace.
The Work Health and Safety Act 2011 and the Safety in Recreational Water Activities Act 2011 set out what sort of incidents are notifiable to WHSQ. An incident is notifiable if it arises out of the conduct of a business or undertaking and results in the death, serious injury or serious illness of a person or involves a dangerous incident.
A person conducting a business or undertaking is required to make the notification immediately after becoming aware that a notifiable incident arising from the business or undertaking has occurred.
The person with management or control of a workplace at which a notifiable incident has occurred must ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed, unless it is for a prescribed reason, until an inspector arrives at the site. The site includes any plant, substance, structure or thing associated with the notifiable incident.
- Work Health and Safety Act 2011
- Business and employer responsibilities
- Incidents and the process for notification
- Managing risks in the workplace
- Hazardous manual tasks.
- Transport, postal and warehousing
- KFS Fuel Services Pty Ltd
- Date of offence:
- Compound fracture of skull and traumatic brain injury
- Toowoomba Magistrates Court
- Mr Graham Lee
- s.38 Work Health and Safety Act 2011
- Decision date:
- $25,000 fine
- Maximum Penalty:
- Conviction recorded:
- CIS event number: