Two individuals have recently been dealt jail sentences in circumstances where their contravention of work health and safety (WHS) duties had fatal consequences. The decision to order a custodial sentence in these cases signals an increased willingness by the courts to impose harsher penalties on businesses and individuals that breach their WHS obligations.
Employer jailed following forklift death
On 18 February 2017, Maria Jackson (72), owner of a scrap metal business, was operating a forklift in Southern Victoria. At the time of the incident, Ms Jackson had just recovered from a stroke and did not hold the necessary forklift licence. While Ms Jackson was operating the forklift, the deceased was cleaning out scrap metal from a metal bin that lay on the forklift tines. After the metal bin was lifted three metres from the ground with the forklift, the bottom of the bin fell through, causing the worker to fall. The worker was fatally struck by the bin and scrap metal when it fell off the forklift. Notably, the bin was in poor condition and had not been properly secured to the forklift.
Ms Jackson pleaded guilty to failing to comply with her duty as an employer not to expose other people to risks to their health or safety, as well as recklessly engaging in conduct that places others "in danger of serious injury." The La Trobe Valley Magistrates Court awarded Ms Jackson a six-month non-suspended jail sentence for contravening the Occupational Health and Safety Act 2004 (Vic). Ms Jackson was also ordered to pay a fine of $10,000, in addition to $7,336 in court costs. Initially Ms Jackson sought to appeal the sentence, but this appeal was subsequently withdrawn.
Company director jailed following roofer’s fatal fall
In what was the first Category 1 prosecution under the Work Health & Safety Act 2011 (QLD) (Qld Act), Mr Lavin, director of Multi-Run Roofing Pty Ltd (Multi-Run), was found guilty of reckless conduct in relation to an incident in which a roofer fell 5.9 metres to his death while working on an industrial shed.
Multi-Run had been engaged to fit roof sheeting by Lavin Constructions Pty Ltd, a company operated by Mr Lavin’s brother. No safety rails were erected around the roof’s edge. This was despite the fact that the work’s contract price of $824,000 included "supplying and installing safety rail".
The court found that Mr Lavin had failed to install the safety rails in order to save money. Due to the absence of safety rails, the roofers had relied on a system of harnesses as well as positioning the rails of one or two scissor lifts alongside the edge of the roof. However, on the day of the incident, the deceased was not wearing a harness at the time of the incident and the scissor lift that was intended to be used as a barrier was not in a position to block the deceased’s fall. Furthermore, although the company had safety equipment on site, these were not utilised by the workers. The head of WHS Queensland, Dr Simon Blackwood, noted that the roofer’s death was preventable and would not have occurred "had the available and correct controls been used".
Recognising the need for general deterrence and the need to denounce Mr Lavin’s flagrant disregard for proper safety methods, the Court imposed a twelve-month custodial sentence upon Mr Lavin, suspended after four months for his contraventions of the QLD Act. The court also imposed a $1 million fine on Multi-Run, to be paid within six months.
Significance of decisions
The decisions discussed above provide a timely reminder that employers must take their WHS obligations seriously, or risk facing serious penalties. The non-suspended custodial sentences awarded to Ms Jackson and Mr Lavin appear to buck the trend in terms of WHS penalties, as custodial sentences handed down for WHS contraventions have typically been suspended.
Significantly, these decisions provide a strong indication that the courts are now more willing to hand down tougher penalties for breaches of WHS duties. The decisions are also consistent with a broader public demand that individuals and businesses be held accountable for tragic accidents caused by breaches of WHS obligations.