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Details of successful prosecution against E222782

Incident description

The defendant company held duties under s.19 (2) of the Work Health and Safety Act 2011 and carried on a leucaena crop pruning business. It owns and operates two modified cane fertiliser spreading machines, which it supplies with labour to prune leucaena crops on properties.

The leucaena chopper has a set of rotating metal cutting blades which chop the plants to a height of approximately 30 - 60 centimetres.

The chopper has a detachable tow bar used for towing either a trailer or quad bike to various properties. While the chopper is in use pruning crops, the tow bar is usually detached and stowed in the chopper cabin.

On 15 December, 2015 a short term casual employee of the defendant was undertaking pruning using one of the choppers in a paddock of a hobby farm, owned by a local man. The chopper became bogged and he phoned the owner of the farm to assist him with retrieval, using the owner's tractor. After an unsuccessful attempt using a chain, the use of snatch straps was employed to pull the chopper from the mud.

Snatch straps are used in what is referred to as “kinetic recovery”. The strap is attached between the recovery and the bogged vehicles. The recovery vehicle is driven away from the bogged vehicle, causing the strap to become taut and then stretch. The recovery vehicle continues to move away, causing the stored kinetic energy in the strap to be transferred to the bogged vehicle catapulting it from the bog. The transfer of energy can be likened to a rubber band where stored kinetic energy is released.

The worker attached one end of the snatch strap to the tractor and the other to the tow hitch on the chopper, rather than a large “D” shackle, which was the appropriate towing connection point. The anti-recoil safety straps were not attached.

They made three attempts to remove the chopper from the bog. While the tow was underway, on the third attempt, the tow hitch connection to the chopper failed, causing the snatch strap to recoil with the tow hitch attached.

The tow hitch was catapulted approximately 15 metres, firing in through the rear window of the tractor cabin as it was being driven by the farm owner, striking him through the back of his seat, throwing him forward.

He was airlifted to Rockhampton Base Hospital where he was stabilised before being flown to Royal Brisbane Hospital and placed in an induced coma for an extended period. He sustained severe orthopaedic and non-orthopaedic injuries resulting in a significant loss of function.

His injuries included:

  1. A head injury with multiple facial and scalp lacerations.
  2. Cervical spinal injury.
  3. Chest wall injuries with rib fractures bilaterally.
  4. Intra-abdominal injuries.
  5. Multiple pelvic fractures.
  6. Multiple lumbar spinal injuries and fractures.
  7. A severe degloving injury involving the soft tissues of the right buttock.
  8. An injury to the right sciatic nerve.

These injuries resulted in a combined total of 11 months in hospital and 31 surgeries to date. It is unlikely that he will ever walk again without the aid of a walking frame.

Court result

On 23 March, 2018, the defendant pleaded guilty in the Rockhampton Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties. The sentence was delivered on May 24, 2018.

Magistrate Cameron Press fined the defendant $104,000 and ordered professional and court costs totalling $1596.15. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate took into account the following factors:

  • The need for general and specific deterrence and denouncement of offender's conduct;
  • The physical, mental and emotional harm caused by the offending. Reference was made to the life changing occurrence as noted in the victim impact statement;
  • Changes made to improve the defendant's health and safety systems since the incident;
  • That the defendant is a small company , the viability of which is reliant on weather and markets;
  • Section 48 of the Penalties and Sentences Act considerations were noted, but the impact of the fine is reduced by the ability to enter into payment plans with SPER.
  • The objective gravity of the offence before mitigation was at the lower end of medium to high, and the fine starting point is $160,000.
  • The fine is reduced by 40% having regard to mitigating factors.

In deciding penalty, his Honour took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty. The court also noted the good character of the directors and the remorse demonstrated.

Considerations for prevention

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

When working in the agriculture industry where there is exposure to risks from , duty holders should consider the following:

Details

Industry:
Agriculture, forestry and fishing
Defendant:
E222782
Date of offence:
15/12/2015
Injury:
Extensive spinal injuries, cracked thorax, multiple breaks both hips and internal injuries
Court
Rockhampton Magistrates Court
Magistrate:
Cameron Press
Legislation:
s.32 of the duty under s.19(2) Work health and Safety Act 2011
Decision date:
24/05/2018
Penalty:
$104,000
Maximum Penalty:
$1,500,000
Conviction recorded:
No
CIS event number:
E222782