Details of successful prosecution against E219134

Incident description

The defendant company held duties under s.19 of the Work Health and Safety Act 2011 being a construction company that undertook the refurbishment of chimney flues and/or smoke stacks including seal replacement and brickwork at the workplace, a Power Station.

This work required the use of an air winch for lifting the refractory bricks and other materials out of the smoke stack. Whilst the worker was attempting to guide the cable, his glove became caught in the moving spool of the air winch and the cable ran over his fingers. He sustained injuries to his left hand, including the amputation of the little finger and fracture of the middle finger.

Court result

The defendant pleaded guilty in the Nanango Magistrates Court on 25 May 2017 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 Andrew Hackett fined the defendant $30 000 being conscious that a conviction may be problematic for a small company's future sustainability. He made an order that no conviction be recorded.

In reaching a decision, the Magistrate said that the fact that the guarding wasn't fitted by the defendant because it was “more convenient” not to do so, resulted in severe inconvenience for the injured worker who was significantly impacted because of the loss of a finger through the absence of guarding. In deciding penalty, and the making of the order that no conviction be recorded, Magistrate Hackett also took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered a very early plea of guilty on the return date.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the construction industry where there is exposure to risks from entanglement or entrapment in moving items of plant, 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 serious injury or death, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Managing the Risk of Plant in the Workplace Code of Practice 2021 (PDF, 1.57 MB)

Details