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Details of successful prosecution against E193327

Incident description

The defendant company held duties under s.19 (1) of the Work Health and Safety Act 2011. It had one employee, the owner and sole director of the company, who was semi-retired. The company’s primary interest was in cattle, but it also did some limited “scrub pulling” work from time to time.

“Scrub pulling” involves clearing vegetation. The process involves dragging a heavy linked steel chain between two (usually track type) bulldozers which move forward across an area of land parallel to each other. The vegetation between the two bulldozers is ripped/pulled out of the ground as the bulldozers drag the chain. The length and weight of the chain varies but can exceed 130 metres and weigh in excess of 7 tonnes.

The deceased and the sole director of the defendant company were friends of more than 30 years. The deceased worked for the defendant company from time to time under a “mate’s arrangement” whereby the deceased was provided with accommodation, food, drink and cash as required. Essentially, working for the defendant company on an ad hoc basis created an opportunity for the deceased and the defendant’s director to socialise.

On 15 January 2014, the deceased was working for the defendant company conducting “scrub pulling”. He was operating a D9G bulldozer, while the director was operating a D10R bulldozer. A fault occurred with the deceased’s bulldozer causing it to stop. The director’s bulldozer continued moving forward unaware that the deceased’s bulldozer had stopped. The forward movement of the director’s bulldozer while the deceased’s bulldozer was stationary caused the latter to be dragged backwards for approximately 30 meters. During this time, the deceased either exited, fell or was ejected from his bulldozer and was run over by it as it was being dragged backwards. The deceased died at the scene having received fatal crush injuries.

The Court heard that the defendant company failed to provide effective communication and awareness between the operators of the bulldozers; and that the defendant company failed to implement appropriate control measures and adequately monitor and review the control measures it had in place. It also heard “scrub pulling” was difficult and dangerous work and was being carried out in a remote rural environment, where for a large part of the work the operators did not have visual contact. In those circumstances, communication between the operators was paramount. The Court heard that the defendant could have provided effective communication between the operators such as a properly working two way radio with a headset. Expert and technical evidence obtained during the investigation found that the two way radio in the deceased’s bulldozer had faults and settings preventing successful communication between the two dozers.

Court result

The defendant pleaded guilty in the Brisbane Magistrates Court on 21 February 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 Judith Daley fined the defendant $70,000 and ordered professional and court costs totaling $1589.40. No conviction was recorded.

In reaching a decision the Magistrate Daley found that the work carried out required considerable co-ordination and communication and at the time of the incident the communication was not effective.

Magistrate Daley acknowledged the emotional impact of the death on the deceased’s family and took into account the impact statement prepared by the deceased’s widow. The Court also acknowledged that the incident has had a profound effect on the director who found his close and long term friend deceased under tragic circumstances and then had to call emergency services.

In deciding penalty, Magistrate Daley took into account significant mitigating factors and accepted that there has been genuine remorse shown through the defendant’s director who had a close long term friendship with the deceased and his widow. ;Further, the defendant, through its director, provided financial assistance to the deceased’s widow which included payment for the funeral. Magistrate Daley also took into account that the defendant’s director had shown a willingness to further compensate the deceased’s widow. Other mitigating factors taken into account included co-operation with the investigation, early plea of guilty and no previous convictions under health and safety legislation.

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 being falling, exiting or being ejected from Rural 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 death or serious injury, obligation holders should consider:

Details

Industry:
Agriculture, forestry and fishing
Defendant:
E193327
Date of offence:
15/01/2014
Injury:
Fatal crush injuries
Court
Brisbane Magistrates Court
Magistrate:
Judith Daley
Legislation:
s.32 of the duty under s.19(1) Work Health and Safety Act 2011
Decision date:
21/02/2017
Penalty:
$70,000 fine
Maximum Penalty:
$1,500,000
Conviction recorded:
No
CIS event number:
E193327
Last updated
02 July 2018

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