A series of litigation has been resolved with the Western Australian Court of Appeal deciding to uphold the original penalties imposed on two directors and a company following a workplace fatality.
D & G Hoists and Cranes Pty Ltd, now in liquidation, and its directors were charged with a breach of the OSH Act after an employee was killed from a blow to the head when crane components slipped from crane slings while being moved in a work yard. The company was found at first instance to have failed to provide a working environment in which employees were not exposed to the risk of being injured or killed as a result of being crushed or hit by crane components when lifted, and the directors were liable for neglect attributable to the offence of D&G Hoists. D & G Hoists was consequently fined $90,000 and its directors $45,000 each.
The appeal to the Supreme Court resulted in an apportionment of the fines because the directors “in many respects are D&G”, with the company’s penalty being reduced to $70,000 and the directors’ to $10,000 each.
The directors then took the case to the Court of Appeal, arguing that their convictions should be overturned due to there being no facts or evidence capable of supporting a finding or inference that they knew or ought to have known of the unsafe method used. Justice Murphy rejected their argument and said that had such evidence been tendered, the courts would not have been bound by it or constrained in its adjudication on whether there had been neglect. The bench supported the inference drawn from the Magistrate’s findings, in that it was foreseeable that the unsafe methods were or would be used by the workers to create the risk of injury or death, and as such the company’s failure was attributable to neglect by its directors.
In addition, the decision by the Supreme Court to apportion the penalties was reversed and the original fines restored.