The District Court of Queensland fined a company $1 million and sentenced its director to imprisonment for one year when an employee died after falling from a roof. The penalties were overturned by the Queensland Court of Appeal due to a technical problem with the way the jury was directed.
However, a retrial has been ordered, which may ultimately lead to a reconviction, and the Court of Appeal’s decision does not detract from the serious implications of the original decision.
Mr Gary Lavin, director of Multi-Run Roofing Pty Ltd, was, at first instance, personally found guilty of breaching section 31 of the Work Health and Safety Act 2011 (Qld) (WHS Act). He was sentenced to one year in jail, suspended after four months.
The charges related to a 62-year old worker who fell approximately six metres to his death from an unprotected roof edge. Mr Lavin’s company, Multi-Run Roofing, was also charged and fined $1 million, to be paid within six months, for similar breaches of the WHS Act.
In coming to its decision, the Court stated that while the workers performing the roofing work were competent, the risk of a fall from heights was significant and adequate prevention measures had not been implemented.
The Court was swayed significantly by the fact that the company had contemplated the need for edge guarding, and even budgeted for it, but ultimately relied upon less effective controls. Importantly, the fact that the company and its director did not have any prior convictions was not enough to prevent the imposition of a stringent sentence upon both parties.
the national trend
Although this is the first and only “Category 1” prosecution in which a final verdict has been reached under the Queensland WHS Act (the most serious category of offence which targets “reckless conduct”), the penalties are consistent with a national trend towards the issue of higher fines and the rollout of industrial manslaughter laws.
In January 2019, a Victorian company director was sentenced to six months’ jail and fined $10,000 for breaches of sections 24 and 32 of the Occupational Health and Safety Act 2004 (Vic).
A further Category 1 prosecution has already been initiated against Oil Tech International Pty Ltd and director Michael Joseph Reid, who will both face charges in the Queensland District Court for allegedly breaching sections 19 and 31 of the WHS Act.
In this matter, a worker was using a heat gun near a tanker when fuel vapour ignited and caused an explosion. If found guilty, Mr Reid may be sentenced to up to five years imprisonment or be required to pay a fine of up to $600,000, while his company could be fined up to $3 million.
Employers and others who owe workplace safety duties must appreciate the fact that lawmakers across the country are giving courts more tools to impose harsher penalties against companies and individuals, and courts themselves are becoming increasingly comfortable with their mandate to do so.
The absence of prior offences will not necessarily afford a second chance to avoid imprisonment or crushing financial penalties.