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Summaries of Most Recent WHS cases

WHS Act s19(1) – Amusement devices
[2019] QDC 150 Reynolds v Tailored Adventures P/L (s21 health and safety duty breached – this was an appeal on penalty where a user of a zip line suffered serious injuries – “The ZipSTOP manual could not have been clearer. Strict compliance with the manual would have prevented the injuries being caused” @92 – “actions of the respondent prior to the incident established that efforts were made to ensure that the ride was safe. It cannot be said that they were recklessly indifferent to the safety of persons on the particular zip line” @93 – “the need for general deterrence should have been reflected in a greater penalty” @110 – fine of $50,000 appropriate)
WHS Act s19(1) – Body parts injured by machines

[2019] NSWDC 302 SafeWork NSW v Millwell Cush P/L (“To obtain better access to clean the feed rollers, McGuffog lifted the major roll cover and observed a large chunk of mouldy wheat on the break roller. Whilst attempting to move this lump with his left hand, the break rollers caught the fingers on his left hand and pulled it into the break rollers of the roller mill. McGuffog attempted to use his right hand to try and pull his left hand out of the roller mill. The fingers of his right hand were also caught between the rollers. As a consequence of the incident, McGuffog had four fingers of his left hand surgically removed, as well as the tip of his left thumb. The fingers on his right hand were severely crushed, resulting in a degloving of the skin and multiple fractures” @10-12 – D had no priors, cooperated post-offence and rectified the danger of inadequate guarding – D also produced an appropriate SWMS – D fined $112,500 after 25% reduction for plea)

WHS Act s19(1) – Death
[2019] NSWDC 321 R v Truslan Constructions P/L (worker, Mr Da Silva, died when he fell about three metres through a gap in the floor on level 2 – the plywood had not been laid – “The Sapform SWMS did not address the risk of falling from heights when laying formwork having regard to the accepted industry standard that is used when laying formwork” @28 – “There were no documented risk assessments undertaken at any stage at the construction site” @32 – “11 days prior to the tragic events that ended Mr Da Silva’s life, the CFMEU had attended the building site and issued notices which specifically identified risks of workers falling from height, and Mr Zhang relied on others to address those issues and made no independent checks to ensure that appropriate measures were taken. This … shows a blatant disregard for the safety of workers, as he did precious little to eliminate or at least minimise the risks to workers” @73 – “The nature of the risk was foreseeable. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is more objectively serious” @75 – court not satisfied D won’t engage in any further breaches – P cooperated with investigation, showed remorse and had no priors – $450,000 fine after 25% reduction for plea)

WHS Act s19(1) – Electrocution
[2019] NSWDC 415 SafeWork NSW v Spectra Plumbing Pty Ltd (“The contact of the copper pipe with the high voltage power lines caused an electrical explosion and Mr Ilioglou was thrown back from the balcony towards the building. … Mr Ilioglou sustained an electrical shock, arc flash injuries to his eyes and severe burns to his left hand and fingers. The offender did not have in place a Safe Work Method Statement (SWMS) or safe work procedure in relation to the task of transporting copper pipes from the ground floor to level 4 of the building. Nor was a risk assessment conducted relating to the presence of the power lines. There was no training, information or instruction provided by the offender to Mr Ilioglou in relation to working near the power lines at the workplace” @21-25 – “The risk involved a risk of death. The injuries sustained by Mr Ilioglou were not serious and he returned to full duties after a few months” @46 – “The means to have prevented the risk were inexpensive. The alternate means were to some extent made more difficult by the actions of the principal contractor” @49 – D had no priors, showed remorse, did a review, made appropriate improvements, fully cooperated and had good prospects of rehabilitation – D fined $150,000 after 25% reduction for plea)

WHS Act s19(1) – Excavators/Excavations
[2019] NSWDC 469 SafeWork NSW v ADN Investments Pty Limited; SafeWork NSW v Yassine (risk of serious injury or death caused to workers due to excavation work – risk of adjacent building collapsing ignored – no one injured – ADN had no priors and responded appropriately post incident – remorse shown – $180,000 fine after 25% reduction for plea)

WHS Act s19(1) – Falling objects
[2019] NSWDC 457 Safework NSW v K & R Fabrications (W’gong) Pty Limited (No. 2) (a worker was seriously injured when an unrestrained bearing housing of gearbox fell on him – D “through its employees on the night shift had actual knowledge of the risk of the housing falling off, if both rear cover plates were removed; The defendant through its employees on the day shift ought to have known of that same risk; There was on site means of eliminating the risk, which was simple to put in place and involved no cost. The overhead crane could and should have been used to support the weight of the bearing housing” @24 – D had an exceptional safety record and had proven safety measures in place and could be described as a model employer – D operated in an industry with a high risk of injury and in 50 years had no priors – D was also a good corporate citizen – D fined $75,000)

WHS Act s19(1) – Falls
[2019] NSWDC 435 SafeWork NSW v PNA Property Development P/L (D “conducted a business or undertaking as a residential and commercial property developer” @4 – worker fell about 5m down ventilation shaft and suffered serious injuries requiring hospitalisation for four months – “The risk was actually known to the offender, but not effectively communicated to the workers. The covering of the penetration could have been easily marked and either covered with a solid covering, or securely barricaded off. Further, the instructions provided by Mark Akkari on site directly to the workers were inadequate to point out to them the latent danger that existed. It should have been apparent to Mark Akkari that the workers might step inside the shaft in the process of performing the task and in particular, installing the lintel. The offender did not have a SWMS in place for the high risk construction work that was undertaken and the workers were not adequately inducted onto the site … Prior to the incident, the offender had been issued a number of Improvement Notices at the site, each relating to the risk of a fall from height. The steps that should have been taken were simple, inexpensive and would not have caused any inconvenience to the offender” @73-76 – D had no priors, is a good corporate citizen, showed remorse and fully cooperated post incident – D fined $180,000 after 25% reduction for plea)

WHS Act s19(1) – Hydro-blasting
[2019] NSWDC 425 SafeWork NSW v Silver Raven P/L (see re sentencing in a case where water at high speed penetrated a worker’s skin causing serious injury – “The risk of water streams under high pressure piercing the skin was identified in the Australian Standard published in 2013, which was referred to in the SWMS. The SWMS had only been settled by the offender three weeks before the incident” @65 – D had no priors, demonstrated remorse and showed good prospects of rehabilitation – $225,000 fine imposed after 25% reduction for plea)

WHS Act s19(1) – Mines (incidents in)
[2019] NSWDC 402 Orr v LakeCoal Pty Limited (In Liquidation) (No. 3) (the D was convicted under s19 – a worker was seriously injured and exposed to a risk of death when his vehicle collided with the roof infrastructure of the mine – D was aware of the hazard – “There was a complete failure by the offender to act proactively to ensure that the risk controls, that it had identified in the WRACs, were implemented” @14 – the worker “was not given any instruction, training or warning regarding roof height, or dimensions of underground roadways, or that there was a possibility of contact with the roof or plant attached to” @14 – culpability in mid-range – D in liquidation – D has no priors and fined $180,000)

WHS Act s19(1) – Scaffolds
[2019] NSWDC 442 SafeWork NSW v Sydney Hoist and Scaffolding P/L (D fined $225,000 after 25% reduction for plea – there was an extreme risk of death when scaffolding collapsed with workers on it bringing down power lines endangering workers below and passing motorists – two workers survived falling several floors on scaffold with no serious physical injuries – one suffered significant mental injury – D knew of problems with the scaffold before the incident – D had no priors and responded appropriately post-incident, being unlikely to re-offend – D could have followed up victims better)

WHS Act s31 – Reckless conduct – Category one
[2019] SAET 104 Campbell v Rowe (the 2nd D was convicted for serious horseplay – he was a site supervisor – he saw the first D squirting a flammable liquid on another worker and lighting it – instead of stopping the behaviour he joined in – there was a real risk of serious harm – D fined $12,000 after 40% reduction for plea – D lost his job – in [2019] SAET 181 the 1st D was sentenced – DPM Cole did not “accept that Rowe was the principal offender in this incident. Rowe had set the scene for what unfolded, but it was the [1st] defendant who squirted the majority of the flammable liquid onto the clothing of Courtney and then set it alight. In the course of doing that he chased Courtney, who was trying to get away from what must have been a frightening situation, and who was an apprentice with little if any control or influence over the defendant as a supervisor” @31 – the 1st D was a relatively young man and is unlikely to commit such an offence again – the offence was committed in an environment of inappropriate behaviour with little if any intervention by management – D fined $21,000 after 40% discount for plea)