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Details of successful prosecution against E242847

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011, its business primarily involving the dredging and extraction of sand and gravel for sale.

On 22 May 2017 a fourth-year apprentice diesel fitter mechanic was injured while attempting to diagnose and repair an electrical fault in the engine of a backhoe owned by the defendant. The injured worker was working with another apprentice under the supervision of an experienced fitter/mechanic.

The backhoe was in poor mechanical condition and was used infrequently for light load lifting and transportation. The rear cabin window was missing and the rollover protection structure was badly rusted.

The experienced fitter/mechanic positioned himself under the backhoe. The injured worker was seated in the cabin providing assistance in accordance with directions given by the experienced fitter/turner, however unknown to the experienced worker the injured worker alighted from the cabin and took up position behind the cabin.

The experienced fitter/mechanic was attempting to jump start the engine by shorting the motor soleniod with a screwdriver. The injured worker was instructed to turn the ignition switch, which he did by leaning in through the frame where the rear window is usually positioned. On the second attempt, the engine started, which caused the hydraulic arm of the hoe (located at the rear of the vehicle) to slew to the left, pinning the injured worker’s leg between the boom and the body of the vehicle.

The injured worker suffered severe leg injuries requiring amputation of the left leg below the knee. He continues to experience ongoing medical complications and psychological injury.

Court result

On 8 August 2018, the defendant pleaded guilty in the Cairns 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 on 21 September 2018.

Magistrate Priestly fined the defendant $125,000 and ordered professional and court costs totalling $1,596.15. The court ordered that no conviction be recorded.

The Magistrate rejected a defence submission that the injuries would not have been sustained by the worker if he had not been standing where he did. Magistrate Priestly found that the backhoe was in such poor condition that it should not have been in service at all, and that was the sole cause of the incident.

In deciding penalty, Magistrate Priestly 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. It was generally a good corporate citizen and had expressed remorse for the offending. Magistrate Priestly took into account the sentencing guidelines provided for in the Penalties and Sentences Act 2002 and in particular the need for general and specific deterrence. He also took into account the sentencing principles applied in Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2017] QDC 20 and the appropriate sentencing range referenced in Williamson v VH & MG Imports [2017] QDC56.

Considerations for prevention

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

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

Details

Industry:
Mining
Defendant:
E242847
Date of offence:
22/05/2017
Injury:
Amputation of left leg below knee
Court
Cairns Magistrates Court
Magistrate:
Magistrate Kevin Priestly
Legislation:
s.32 of the duty under s.19(1) Work Health and Safety Act 2011
Decision date:
21/09/2018
Penalty:
Fined $125,000
Maximum Penalty:
$1,500,000
Conviction recorded:
No
CIS event number:
E242847
Last updated
09 October 2018

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