2020 NT Safety Symposium

1. Safety Symposium
Legal considerations for workplaces of
tomorrow – lessons from the cases
25 November 2020
Aaron Anderson Partner Aaron.Anderson@hsf.com +61 7 3258 6528

2. // 2
Drivers for change

3. // 3
Recent case developments
• First sentence delivered
• Second charge commenced
Industrial Manslaughter
• Dreamworld prosecution proceedings finalised
Highest WHS penalty imposed
• Blurred line for reliance on subcontractors to manage safety risks
• Psychosocial risk arising from changing work environment
Emerging prosecution risks
• Trend of higher penalties for breaches of WHS laws
• Penalties against individuals and companies
Increased enforcement action and penalties

4. // 4
R v Brisbane Auto Recycling Pty Ltd and Hussaini and Karimi
Facts
• Barry Willis was engaged by Brisbane Auto Recycling to collect motor vehicles from customers using the
business’ tilt tray truck. In May 2019, he was strapping a load of tyres on the tray when one of the forklifts,
driven by an unlicensed worker, reversed into him and crushed him against the tilt tray.
• Willis was taken to hospital by ambulance, and died from his injuries eight days later.
• Brisbane Auto Recycling Pty Ltd had no documented safety management system for the activities at the
wrecking yard, and no separation mechanism between pedestrian and other workers.
• Industrial manslaughter charges were brought against Brisbane Auto Recycling.
• Proceedings were also brought against both of the company directors for reckless conduct associated with
breaching their Officer’s duties under the WHS Act.
Findings
• The conduct of Brisbane Auto Recycling caused the death of Mr Willis because it failed to control the
interaction of mobile plant and workers at the workplace, failed to effectively separate pedestrian workers
and mobile plant, and failed to effectively supervise operators of moving plant and workers.”
• Mr Hussaini and Mr Karimi were reckless as to the risk to workers and members of the public who
had access to the workplace. They failed to ensure that Brisbane Auto Recycling controlled the interaction
of mobile plant and pedestrians, effectively separated pedestrians and mobile plant and effectively
supervised operators of moving plant.
Brisbane Auto Recycling Pty Ltd was convicted and fined $3 million. Its two directors were each convicted
and sentenced to 10 months' imprisonment (wholly suspended for 20 months).

5. // 5
Gympie business owner charged with IM
• Mr Guilfoyle has brought charges against a Gympie business
owner for industrial manslaughter.
• Business owner negligently caused the death of a worker in
the course of business (selling and servicing electric motors).
• Maximum penalty for industrial manslaughter in Qld is 20
years’ imprisonment.
• Case represents the first prosecution for industrial
manslaughter against an individual in Qld.
• The Company has also been charged with an offence under
the Act.
• The charges against the business owner were mentioned in
the Gympie Magistrates Court on 1 October 2020.
Overview

6. // 6
Dreamworld – record WHS penalty
The incident was one of two workplace tragedies in
Queensland that led to the introduction of the industrial
manslaughter laws
Record-high workplace health and safety fine of $3.6
million
Coronial inquest found the Dreamworld theme park had
relied on “frighteningly unsophisticated” safety systems
for decades

7. // 7
SafeWork NSW v McConnell Dowell Constructors
Facts
• Principal Contractor had engaged Subcontractor to provide marine
services and the installation of pilling works for the Project, using a barge.
• In March 2017, workers were on the Maeve Anne barge at the Project
when two headstocks which had been placed upright and unrestrained
on the deck of the barge by the Subcontractor fell onto a worker, resulting
in his death.
• It was alleged the Principal Contractor had failed to comply with its health and safety duties.
• Principal Contractor argued their duty did not extend to the safety responsibilities of the Subcontractor.
Findings
• Judge took a broad view of the duty of a principal contractor to take reasonable care that subcontractors
whose assistance is necessary does not expose workers to hazards.
• Relevant that the Principal Contractor had expertise in the specialised marine construction task and was not
relying on the Subcontractor for its expertise to carry out the work.
• Principal Contractor took a “one team approach” to safety with the Subcontractor.
• Principal Contractor had control over the Subcontractor because it had a contractual right to request the
Subcontractor at any time stop work or perform work in a different and safer manner. Judge found the
Principal Contractor ought to have directed the Subcontractor to undertake a risk assessment.
• This course of action was reasonably practicable, taking into account an analysis of cost, foreseeability,
likelihood and severity of risk.
• Principal Contractor not entitled to rely on Subcontractor to attend to safety requirements as it shared the
same level of expertise and retained control at all times.
McConnell Dowell
Constructors
(Principal
Contractor)
Brady Marine & Civil
Pty Ltd
(Subcontractor)

8. // 8
Psychosocial risks
SafeWork Australia published a
snapshot of the 533 COVID-19
related workers’ compensation
claims lodged in 2020.
34% of those claims related to
mental health impacts of
COVID-19.
• WHS duties apply to both physical and mental health.
• Employers must, so far as is reasonably practicable, ensure the
mental health of their workers and protect workers from
psychological risk.
Safety regulators and the courts are increasingly focussing on
psychological risks in the workplace

9. // 9
Trend of increasing penalties
Courts are showing a
willingness to award
higher penalties for
breaches of WHS laws and
higher awards of costs
Increasing trend of
prosecutions against
individuals, including
prosecution for industrial
manslaughter

10. // 10
Aaron Anderson,Partner
Brisbane
T +61 7 3258 6528
M +61 421 583 066
aaron.anderson@hsf.com
Key Contacts

11. // 11
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