Batley v S. Lowe and Sons (Tully) Pty Ltd [2003] ICQ 40 (2003) 174 QGIG 179

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Vol. 174 FRIDAY, 19 SEPTEMBER, 2003 No. 3 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Russell George Batley AND S. Lowe and Sons (Tully) Pty Ltd (No. C42 of 2003) PRESIDENT HALL 4 September 2003 DECISION On 27 May 2003 the Industrial Magistrate at Innisfail found the respondent guilty of a breach of section 24 of the Workplace Health and Safety Act 1995. The obligation said to have been breached was that owed pursuant to s. 28(1) of the Act. The Industrial Magistrate declined to record a conviction and imposed a fine of $3,000. For completeness I add that the Industrial Magistrate also ordered the respondent to pay Court costs of $62.10, professional costs of $5,958.82 and $703.40 investigation costs. This is an appeal against the quantum of the fine. In summary form the facts were that the respondent operated a banana packing shed at Euramo via Tully. One aspect of the operation involved workers performing duties on a raised mezzanine floor. The floor was approximately 2.7 metres above the floor of the packing shed. A significant portion of the mezzanine floor had full protection measures in place in the form of metal top rails and mid-rails. However, there was an area about 2.3 metres wide where there was no form of guard rail. The effect of the evidence was that the area had been left unguarded to enable forklifts to lift pallets of unformed cardboard cartons up to the edge of the mezzanine floor. From that area workers moved the pallets away from the delivery area using a floor jack. The workers would then assemble the boxes and lids, and send them down a gravity fed conveyor to the packing shed floor below. Once the deficiency in the guard rail came to the notice of the Division of Workplace Health and Safety, an improvement notice was issued requiring the respondent to install a metal gate which spanned the width of the delivery area. The gate was designed so that it latched and unlatched from ground level, obviating the need for any person to activate the gate mechanism from the mezzanine level. By the time the matter went to a final hearing, no circumstance of aggravation was alleged. All that was alleged was breach of the obligation imposed by s. 28(1). Breach of the obligation, whether or not accompanied by death or injury, is an offence against the Act. Indeed, it is a serious offence. In the -- 1 of 2 -- 180 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 September, 2003 case of a defendant which is a body corporate, as the respondent is, it is the effect of s. 24 of the Workplace Health and Safety Act 1995 and s. 181B of the Penalties and Sentences Act 1992 that the maximum penalty is $150,000. Although breach of the obligation at s. 28(1) unaccompanied by death or injury is in itself an offence, instances of prosecutions in such circumstances are few in number. Indeed, it is my understanding that this is the first case of a breach simpliciter to have reached the Industrial Court of Queensland. Additionally, cases involving falls from heights are overwhelmingly cases in which the fine imposed has been significantly discounted in response to a timely plea of guilty. In those circumstances, I can feel great sympathy for the Industrial Magistrate at Innisfail. There was no chance of the Industrial Magistrate hiding within a tariff. The truth is that there was no tariff against which His Worship might test his sentence. That said, it seems to me that the Industrial Magistrate did underestimate the objective gravity of the offence. The Workplace Health and Safety Act 1995 and the advisory standards made thereunder require employers (and some others) to identify hazards and manage the risk. Here, the respondent failed at the first hurdle. The hazard was not recognised. Yet the hazard was obvious and, as subsequent events showed, the risk was easily managed. I accept that blameworthiness is a factor, but with respect to the Industrial Magistrate am unable to find an absence of blame where familiarity has bred contempt. It is a primary purpose of the Workplace Health and Safety Act 1995 and the advisory standards made thereunder to ensure that familiarity with electric saws, large animals, unguarded elevated working platforms or any other danger does not expose workers to the risk of injury. The scheme requires employers (and others) to reassess that which they have become comfortable with. Here, the respondent did not do that. I am inclined to the view that the complainant was right to nominate a basic scale of $15,000 to $22,500. That range is not inconsistent with the decision of this Court in Neilands v. O’Neil (2001) 168 QGIG 134. Though there was a circumstance of aggravation because the case involved the prosecution of a natural person, s. 181B of the Penalties and Sentences Act 1992 did not apply and the maximum penalty was much lower. Additionally there had been a timely plea of guilty. Here, there were few mitigating factors. Certainly, the respondent was a first offender. However, there was neither a timely plea of guilty nor prompt remedial action. Neither the excuse of the right to defend nor the absence of remedial action is a circumstance of aggravation. It is simply a matter of noting the absence of what would otherwise be mitigating factors. The case, however, should not be allowed to rest there. First, the Division of Workplace Health and Safety moved so promptly that the respondent had no opportunity to take remedial action. Second, in its original form the complaint alleged a very serious circumstance of aggravation, viz. death. That allegation was withdrawn only in the shadow of the courthouse when it emerged that the worker had not fallen and died but had died and fallen. I can well understand why a defendant confronted with an allegation that breach of s. 28(1) had caused death would plead not guilty and must accept that the experience of being subject to such a charge would be extraordinarily stressful. Sentences under the Workplace Health and Safety Act 1995 take the objective gravity of the offence as a starting point because of the need to deter others and to deter the defendant. Indeed, in this case it is particularly necessary to take into account the need to deter the respondent because, on his sworn evidence, the gentleman with day to day conduct of the respondent’s affairs was, even at trial, unwilling to acknowledge that there was a hazard. One must, however, exercise caution to ensure that the need for deterrence does not develop into oppression. In all the circumstances, which are unlikely to be repeated, it seems to me that an appropriate fine is a fine of $10,000. I allow the appeal. I set aside the decision of the Industrial Magistrate imposing a fine of $3,000. In lieu thereof I order that the respondent be fined $10,000. I grant liberty to apply should time for payment be necessary. I otherwise confirm the decision of the Industrial Magistrate. Dated 4 September 2003. D.R. HALL, President. Appearances: Ms J. Cameron, instructed by Workplace Health and Safety, for the appellant. Mr M.E. Pope, instructed by Bruce K. Gillam, Solicitor, for the respondent. -- 2 of 2 --