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Details of successful prosecution against E214321 - Company

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 being a small horse facility for dressage and stabling. It employed up to 4 to 5 casual staff, including the 17 year old injured worker, to repair fences, feed, water and care for horses in the stable.

The defendant pleaded guilty in the Noosa Magistrates Court on 22 December 2016 to breaching sections 32 and 38 of the Work health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

On 13 May 2015, a young worker was alone in the stable when she received a text from the wife of the director of the defendant to count feed and take stock in the barn which had a mezzanine level where feed was stored. She extended an ‘A’ frame ladder to climb up to count horse feed and hay bales. In the process of returning to ground level, she fell 2.6m onto a concrete floor.

There were no witnesses, but workmates heard a noise and went to her assistance and called an ambulance. She sustained injury including a fractured skull, contusions to the brain, fractures to vertebra at C5, L2, L3 and L4 and abrasions. A victim impact statement was tendered on the injured worker’s behalf detailing both the pain suffered and rehabilitative progress. The court heard she had resumed some horse riding and was working part-time but had deferred studies.

The injured worker was a “young worker” falling under the Children and Young Workers Code of Practice 2006. Access and egress to the mezzanine floor did not have any hand rail or other fall protection. The defendant company failed to adequately assess the hazard of fall from height. There was a risk a worker could fall from the mezzanine floor in the absence of fall protection to prevent or minimise such a risk. It also failed to ensure the regulator was notified immediately after becoming aware that a “notifiable incident” arising out of the conduct of the business or undertaking occurred. It took two weeks to notify.

Court result

Magistrate Annette Hennessey convicted and fined the defendant $33,000 (factoring both the major and lesser offence of s.38 fail to notify) and ordered professional and court costs totaling $1079.40. No conviction was recorded.

Her Honour was minded to impose a totality in sentencing approach and was of the view the facts and circumstances were at the lower end of the range.

In deciding penalty, Magistrate Hennessey 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 defendant’s submissions with respect to the “hobby farm” undertaking saw it sentenced on that financial basis.

Her Honour fined the defendant given its unique circumstances, including the fact the centre had ceased to operate and the workplace was more akin to a private residence, it was a small undertaking with little concern to profit. In relation to the notifying charge, the court in particular noted no prejudice was suffered by the complainant as a consequence of failing to notify in that the scene was preserved, the ladder remained intact and the defendant subsequently co-operated with the investigation. Furthermore, the fail to notify was considered “novel” and it was accepted the ambulance service did not notify WHS nor did the Nambour Hospital.

Considerations for prevention

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

When working at height in any industry where there is exposure to risks from a fall from a ladder specifically (or height generally), duty holders should apply a risk management approach to ensure the selection of suitable control measures; for example consider the installation of fixed ladders and guard rails where frequent access and egress at height is required.

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.

Details

Industry:
Arts and recreation services
Defendant:
E214321
Date of offence:
13/05/2015
Injury:
Fracture injuries to vertebrae
Court
Noosa Magistrates Court
Magistrate:
Annette Hennessey
Legislation:
s.32 of the duty under s.19(and s.38) Work Health and Safety Act 2011
Decision date:
22/12/2016
Penalty:
Convicted and fined $33,000 for s.32 and convicted no fine attached to fail to notify
Maximum Penalty:
$1,500,000 for s.32 and $10,000 for failing to notify
Conviction recorded:
No
CIS event number:
E214321
Last updated
02 July 2018

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