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Details of successful prosecution against E238161

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011. It operated a lychee farming and harvesting business, a family operation in the region for some five decades.

It employed casual pickers to pick fruit. On 23 January 2017 a 20 year old worker was performing picking work, walking out onto one extended plank from a modified EWP which had two extendable planks (like fork lift tynes) connected to a tractor. One or two planks (50 cm x 200 cm each) could be extended and workers would walk the plank(s) and put fruit in bags.

The trailer was positioned in a tree line, and elevated approximately 2 metres. Only one plank, the left corner plank had been extended. As the worker walked out on the plank, he grabbed a tree branch for stability, but another branch contacted the side of his leg causing him to lose balance and fall to the ground. He fell and sustained back injuries requiring surgery.

Court result

On 6 July 2018, the defendant pleaded guilty in the Maroochydore Magistrates Court 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 Madsen fined the defendant $50,000 and ordered professional and court costs totalling $1092.55. He also made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 12 months, with a recognisance in the sum of $50,000 to be forfeited if convicted of an offence within this period. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate took into account the importance of engineering controls and how the risk could have been minimised. This was affirmed as post-incident the defendant immediately remedied the deficiency without much cost by setting up guarding and other physical barriers to protect workers from a fall from height. The court accepted the need to be proactive and generally deter others in this line of work.

His Honour also considered submissions about the financial circumstances of this family company (and the extent of debt from existing bank and government loans as a result of Cyclone Oswald). Despite up to date financials indicating debts, and submissions about the health of one of the directors (69 year old with cancer), the court did not accept the fine should be at the lower end of any identifiable range.

In formulating the sentence, his Honour analysed the financials and weighed the need to deter others in what was an avoidable set of circumstances. In deciding penalty, Magistrate Madsen 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.

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 falling from heights, duty holders should consider the following:

Details

Industry:
Agriculture, forestry and fishing
Defendant:
E238161
Date of offence:
23/01/2017
Injury:
Back injuries
Court
Maroochydore Magistrates Court
Magistrate:
Magistrate Madsen
Legislation:
s.32, duty 19(1) Work Health and Safety Act 2011
Decision date:
06/07/2018
Penalty:
$50,000 fine plus 12 month court ordered undertaking with recognisance of $50,000
Maximum Penalty:
$1,500,000
Conviction recorded:
No
CIS event number:
E238161
Last updated
07 August 2018

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