Australia: OHS penalty for avoidable workplace death

Workplace Directions
Last Updated: 4 July 2011
Article by Emma Reilly

Inspector Maynard v Byrne Group Management Pty Limited [2011] NSWIRComm 72 (25 May 2011)

The WorkCover Authority of New South Wales charged the defendant, Byrne Group Management Pty Limited, with a breach of s8(1) of the Occupational Health and Safety Act 2000 ('the Act'). The defendant pleaded guilty and the judgment concerned penalty only.

The defendant operated the business of manufacturing and marketing road trailers, waste transport trailers and other equipment. The principal shareholder and controlling director of the defendant at the time of the incident that gave rise to the proceedings was Mr Byrne. His sons were also involved in the business operations. At the time of the incident, the defendant had an occupational health and safety management system in place, managed by the general manager, who was one of Mr Byrne's sons. Amongst the defendant's senior personnel was a human resource manager.

A number of employees were recruited from China under the 457 visa program initiated by the Australian Government. Included within this group of employees was Lian Rong Xia ('Mr Lian'), who was a qualified welder with approximately 12 years experience and Liao You Quan ('Mr Liao'), who was also a qualified welder with approximately 10 years experience in China.

On 2 September 2008 Mr Lian and Mr Liao were building a trailer under a working platform. Mr Liao was holding a welding gun and Mr Lian was holding a steel tube ready for Mr Liao to weld. Before Mr Liao could attend to the weld, a rectangular piece of steel approximately 6.3m x 50mm x 2.5mm weighing approximately 22.75kg fell through the gap between the working platform and the trailer. It struck Mr Lian on the back of his head and narrowly missed Mr Liao. Mr Lian was not wearing a welding helmet as required. Mr Liao says that he felt something brush his head and stated that if he was taller, he would have also been struck. The steel fell 60cm before striking Mr Lian, then falling to the floor.

Mr Lian was semi-conscious after being struck and he complained of a severe headache. Mr Brad Willis, First Aid Officer, placed Mr Lian in the 'recovery position' while awaiting for the ambulance to arrive, which then transported him to Wagga Base Hospital. He was later transferred to St. Vincent's Hospital in Sydney. Mr Lian did not regain consciousness and died on 9 September 2008 as a result of intracerebral haemorrhage.

A system of work existed where employees were working above other employees when building multi-deck trailers, once the top and bottom deck structure was completed. Employees worked on different levels of the trailer whilst completing the internal fit out. Employees were not prohibited from working under the work platform whilst other employees were working from the (upper) work platform. Employees in the 'standing' section usually worked in pairs, which meant that the two employees worked together such that usually no other employees would be working above or below that pair of employees. However, on the date of the incident two pairs of employees were working in standing area 3. It was not prohibited for employees to work below the work platform while other employees were working above.

The working platforms were mounted close to cattle trailers, however there was a gap of approximately 220mm between the working edge of the platform and the working face of the trailer under construction. The risk of something falling through the gap had not been identified.

It was noted in the judgment that the defendant was the subject of adverse publicity as a result of media attention after the incident occurred. Marks J was satisfied, on the basis of the evidence of Mr Byrne, that he personally was physically and emotionally affected by the incident and its aftermath.

The defendant and Mr Byrne expressed genuine and sincere remorse and contrition for what occurred, which was manifested also in a tangible manner in terms of assistance for Mr Lian's family and implementation of alternative work procedures.

It was stated that the starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. The prosecutor asserted, and Marks J accepted, that the offence was a serious one. As was candidly conceded by the defendant, there were defects in the work methodology. The risk that was created was a grave one resulting, tragically, in the death of an employee. Although the defendant had in place a comprehensive work plan and a comprehensive commitment to occupational health and safety matters, there was a failure to comply with the provisions of the Act. Deterrence was also taken into account. Overall, this was held to be a serious offence, but not one committed by a defendant who had no regard for its obligations under the Act and which had not attempted to satisfy those obligations. It was not a worst case scenario, nor was it a breach of a technical or minor nature.

There were a number of subjective factors taken into account in favour of the defendant, including their unblemished prior record and genuine commitment to the obligations created by the Act. Furthermore, the defendant pleaded guilty at the earliest opportunity, and expressed genuine contrition and remorse for what occurred. Finally, the defendant was regarded as a good corporate citizen.

The defendant no longer operated the business and had no assets. However, Mr Byrne, who was still involved in the business through a different corporate entity, undertook that any fine imposed would be paid.

The maximum penalty was the sum of $550,000. Having regard to the objective seriousness of the offence and the need to accommodate both general and specific deterrence, but taking into account subjective matters described above, Marks J imposed a penalty of $100,000 and ordered that the defendant pay the costs of the prosecutor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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