Annie Smeaton, Partner, together with Jack Bristed, Graduate at Cooper Grace Ward, provide an overview of Australia’s first Industrial Manslaughter case that was decided in Brisbane, by looking at the circumstances of the offences as well as the considerations taken during sentencing.
A Brisbane scrap metal yard has been fined $3 million for industrial manslaughter and its two directors sentenced to 10 months imprisonment, wholly suspended, for reckless conduct after a worker was hit by a reversing forklift and later died from his injuries.
The offence of industrial manslaughter commenced in Queensland in October 2017 and, since then, almost all other Australian states and territories have moved to introduce similar legislation. The offence introduced harsher penalties for businesses and their senior officers for workplace health and safety incidents that result in death. The case of R v Brisbane Auto Recycling Pty Ltd [2020] QDC 113 is the first time a business has been sentenced under these laws and provides a warning for all companies and directors that worker safety is of paramount importance.
We produced an alert when the charges were first laid: Company and its directors charged with industrial manslaughter and reckless conduct in Queensland first.
Circumstances of the offences
On 17 May 2019, Mr Barry Willis was crushed between the side of his truck and a reversing forklift driven by another employee in the delivery area of Brisbane Auto Recycling. Mr Willis died from his injuries on 25 May 2019.
Brisbane Auto Recycling was charged under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act) with industrial manslaughter and its two directors, Mr Hussaini and Mr Karimi, were both charged with reckless conduct – category 1 under section 31 of the WHS Act for failing to exercise due diligence in ensuring that Brisbane Auto Recycling complied with its obligation to ensure the health and safety of its workers by:
- without reasonable excuse, engaging in conduct that exposed a worker to a risk of death or serious injury
- acting recklessly as to the risk to the individual of death or serious injury.
Each defendant pleaded guilty and the sentencing hearing was in May 2020. Brisbane Auto Recycling was fined $3 million and each of the directors was sentenced to 10 months imprisonment, wholly suspended for a period of 20 months.
Considerations in sentencing
In reaching the sentences, Judge Rafter SC considered the following:
- Brisbane Auto Recycling had no workplace health and safety policies whatsoever and the directors had told staff to ‘look after their own safety’
- workers were at risk of serious harm for the 15 months before the incident
- Brisbane Auto Recycling had no prior workplace health and safety breaches
- the directors initially misled the investigators and Mr Willis’ wife, however subsequently fully co-operated with the investigation
- the need for general and specific deterrence against similar conduct
- psychiatric reports in relation to Mr Hussaini
- the pleas of guilty
- the character, age and other mitigating factors, including that the two directors were:
- aged 22 and 24 at the time of the incident
- refugees from Afghanistan on permanent residency and would have been deported under the Migration Act if they were found guilty of an offence and sentenced to more than 12 months’ jailtime
- both directors had dependent families in Afghanistan.
It was noted that the fine would likely force Brisbane Auto Recycling into administration.
Conclusion
This case serves as a warning to companies and directors that the workplace health and safety prosecutor and the Courts will not look kindly on businesses that don’t take reasonable action to ensure the health and safety of their workers.
With many years’ experience as an advocate with a strong background in employment, industrial, safety, education (including pre-enrolment and enrolment) and anti-discrimination law, Annie Smeaton provides her employer clients with strong representation and practical commercial advice. Connect with Annie via email or LinkedIn
Jack Bristed is a graduate at Cooper Grace Ward Lawyers, specialising in Workplace Relations and Safety. Connect with Jack via LinkedIn
