Queensland records its first industrial manslaughter conviction in an Australian first

By Chao Ni, Principal

On 11 June 2020, the Brisbane District Court delivered its judgment in the case of R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113.

The defendants, Brisbane Auto Recycling Pty Ltd (BAR) and its two directors Mr Hussaini (aged 25) and Mr Karimi (aged 23), were each charged and convicted under industrial manslaughter laws in Queensland.

The decision marks the first industrial manslaughter conviction in Australia.

Facts

The convictions related to a fatal incident on 17 May 2019, when a worker engaged by BAR, Mr Barry Willis, was struck by a forklift which was being reversed by another worker, Mr Mohammad Yaqubi. Eight days later on 25 May 2019, Mr Willis died from the injuries he sustained.

Both Mr Hussaini and Mr Karimi supervised work activities at the workplace where the fatality occurred.

Investigations by Workplace Health and Safety Queensland concluded that:

  1. Brisbane Auto Recycling Pty Ltd had no safety systems in place. In particular, there was no traffic management plan at the worksite, across which a number of forklifts operated constantly in close proximity to workers and members of the public.

  2. The forklift driver, Mr Yaqubi, was an inexperienced forklift driver and did not hold a high risk work licence to operate a forklift. Moreover, Brisbane Auto Recycling Pty Ltd had not made sufficient enquiries to confirm whether he held one.

Each of the defendants pleaded guilty to the charges (industrial manslaughter for BAR and Category 1 offence of recklessly causing injury for the two directors).

The maximum penalty for an offence of industrial manslaughter committed by a body corporate is a fine of AUD$10 million.

The maximum penalty for a reckless conduct – category 1 offence committed by an individual as an officer of a person conducting a business, is a fine of AUD$600,000 or 5 years imprisonment.

In sentencing, the Court stated the factors to which a sentencing Court must have regard to include:

  1. The maximum penalty;

  2. The nature of the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court ;

  3. The extent to which the offender is to blame for the offence;

  4. The offender’s character, age and intellectual capacity;

  5. The presence of any aggravating or mitigating factor concerning the offender;

  6. The prevalence of the offence;

  7. How much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and

  8. Any other relevant circumstance.

The Court ordered that BAR be fined AUD$3million and each of the two company directors be given a suspended sentenced of 10 months’ imprisonment.

Details of actual factors taken into account for each of the defendants can be read in the full Judgment (paragraphs 57 to 115), which included the prospect of deportation for the two directors, their background as Afghan refugees, and the impact on their family members.

Message to Take Away

In early 2020, we published an article on the introduction of new workplace manslaughter laws in Victoria from 1 July 2020. The Victorian laws provide that a person will be guilty of workplace manslaughter if they engage in conduct that is negligent, in breach of a workplace safety duty and which causes the death of a another person.

The BAR decision will likely be referred to by Victorian Courts for future workplace manslaughter cases, particularly in the case of forklift related fatalities.

In the BAR case, the Court commented that simple cost modest measures could have been taken by BAR to avoid the workplace fatality, including the installation of signage, plastic bollards and marked exclusion zones. Every workplace that has forklift(s) and plant alike should take these comments to heart.

For more information about this article, please contact our Employment Law team by email or on telephone +61 3 8540 0200.