Industrial Court of Queensland s4

[Extract from Queensland Government Industrial Gazette, dated 23 June, 2006, Vol. 182, No .8, pages 204-206]

INDUSTRIAL COURT OF QUEENSLAND

Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate

Adam John Low AND BBC Hardware Limited (C/2006/31)

PRESIDENT HALL 14 June 2006

DECISION

The respondent pleaded guilty to a complaint that it had failed to discharge a workplace health and safety obligation contrary to s. 24 of the Workplace Health and Safety Act 1995. The obligation said not to have been discharged was the obligation at s. 28(3). The person whose health and safety was particularised as having been at risk was a Mr Brett David Huxtable. A circumstance of aggravation was alleged, viz that Mr Huxtable sustained grievous bodily harm injuries.

An agreed set of facts was handed to the Industrial Magistrate. I reproduce that agreed set of facts.

"The charge 1. BBC HARDWARE LIMITED (the defendant) is charged with an offence under section 24 of the Workplace Health and Safety Act 1995 for failing to ensure that other persons where not exposed to risks to their health and safety arising out of the conduct of the employer's business or undertaking.

2. The risk is the risk of injury, including the risk of elbow comminuted fracture injury to Brett David HUXTABLE.

3. The source of the risk emanates from the work method adopted for retrieval of reinforced steel mesh sheeting.

4. The date of the contravention was 22nd day of October 2004.

5. A circumstance of aggravation, being a grievous bodily harm injury has been alleged.

Background 6. The defendant operates out of Compton Road Underwood in Queensland.

7. The defendant is a retail supplier of hardware products.

8. The injured person was not employed by the defendant. He was a member of the public.

Facts 9. On the day of the incident at approximately 9.00 am Brett HUXTABLE (Brett) went to the defendant's workplace with his son Aaron HUXTABLE (Aaron). Brett intended purchasing half a full sheet (5.7m x 2.5m) of reinforcement mesh which he had made enquiries about the previous day when he was in the store.

10. Brett went to the counter in the trade section to ask for assistance. There were two staff members behind the counter and four customers waiting to be served. Brett spoke to a staff member Nick GOODSELL (GOODSELL) whom he had spoken to on the previous day. GOODSELL had been a Team Member of the defendant for approximately five weeks prior to the day of the incident.

11. The staff member recalled Brett's requirements and the conversation from the day before and advised him that he was busy and was unable to leave the trade counter. Instead, he gave Brett a pair of bolt cutters and pointed to where the mesh could be retrieved from. Brett was instructed to cut the mesh himself to the size he desired and then come back to the trade counter to sort out the paper work.

12. The sheets of reinforcement mesh were stored on an 'A Frame' approximately 20 meters from the trade counters in the outside yard.

13. As Brett had some experience with construction work and had used bolt cutters before, he felt it would not be a problem cutting the mesh himself. 2

14. Brett commenced cutting the reinforcement mesh with the bolt cutters he had been provided with. When Brett had only two snips of the wire mesh to go he needed to wiggle the sheet a bit as the wires had become entangled. As Brett was getting tired his son offered to finish the cutting.

15. Subsequently, Aaron took over cutting and Brett held up the sheets. It was at this point in time that Brett felt the weight of the sheets as they began to fall. Brett started to walk backwards whilst trying to support the weight of the falling sheets, but could not stop the sheets from falling down upon him. Aaron managed to get out of the way and suffered only minor scratches in the process of doing so.

16. As a result of the wire mesh falling down on top of him, Brett sustained a comminuted fracture of the right humerus (elbow) requiring surgical insertion of a plate and screws.

The investigation The investigation revealed that:

17. Brett was struck by 21 sheets of reinforcement mesh, each sheet weighing approximately 23kg, amounting to a total weight of 483kg.

18. There was no evidence to suggest that any risk assessments had been conducted by the defendant for the handling or retrieval of reinforcement mesh for customers from the storage yard.

Other matters 19. The defendant has implemented remedial measures designed to ensure that a similar incident does not occur.

20. The defendant declined to participate in a record of interview.

21. The defendant has no previous convictions for any offence under the Workplace Health and Safety legislation.

22. The prosecution would not oppose an application by the defendant that a conviction not be recorded.".

The respondent was convicted and fined $30,000. Additionally the respondent was ordered to pay investigation costs in the sum of $976, professional costs in the sum of $750 and costs of court in the sum of $64. In default of payment levy by distress and execution was to apply. No conviction was recorded. The respondent was allowed three months within which to pay. This appeal is limited to the quantum of the fine imposed by the Industrial Magistrate.

The appellant's primary argument is that the Industrial Magistrate misapplied the decision of this Court in Peter Vincent Twigg v Hughes and Hessey Pty Ltd (2005) 180 QGIG 924.

In my recollection Peter Vincent Twigg v Hughes and Hessey Pty Ltd (2005) 180 QGIG 924 was a case about the weight to be given to impecuniosity. In matters under the Workplace Health and Safety Act 1995, impecuniosity is sometimes raised as justifying the imposition of a more modest fine than would otherwise be the case where a struggling or fledgling company has difficulty in meeting the very high standard set by the statute and by the statutory instruments made thereunder. That approach to sentencing was entirely rejected. But the decision does recognise that there will be cases in which, at the point of sentencing, a defendant is in such stricken circumstances that the sentencing court has to face reality, put aside the otherwise appropriate sentence and ensure that in seeking to encourage observance of the statute the court does not grind off the defendant's face. Against that background this Court, having set aside the fine of $12,000 imposed by the Industrial Magistrate, observed that the appropriate range was $30,000 to $40,000 and imposed a fine of $30,000 because Counsel for the appellant had contended for the range $25,000 to $30,000. The figure of $30,000 was selected because that was the point at which there was a match between the appellant's submission and the Court's view of the appropriate range. In my view the decision does not suggest, and certainly was not intended to suggest, that the range $30,000 to $40,000 was the appropriate range for corporations with a very modest capacity to pay and that there was another (higher) range for defendants in more comfortable financial circumstances. No attempt was made to place the circumstances of the case between $30,000 and $40,000, though comment was made that the approach should be measured rather than sympathetic. In my view the Industrial Magistrate did not misuse the decision in Peter Vincent Twigg v Hughes and Hessey Pty Ltd (2005) 180 QGIG 924. The range $30,000 to $40,000 was the appropriate range.

Some attack was made upon his Honour's placement of the sentence within the range. It was contended that the respondent had not identified the hazard. With respect, it seems to me that the evidence showed that the hazard had been identified. Steps had been taken. Mechanical control had been implemented whereby the reinforcing mesh was chained to the stand upon which it was rested to prevent the possibility of it falling. Administrative control had been implemented by way of delegating to a staff member the function of inspecting the mesh daily to ensure that the chain was properly in place. Inspection had occurred on the morning of the incident. It was the evidence that there had been no similar incident at any of the respondent's stores to indicate that the system of risk management was inadequate. 3

The appellant is, of course, entitled to attack the decision on the basis that the sentence itself indicates that some unidentified error of law or of principle has been made. But it must be squarely borne in mind that it is not enough to persuade this Court that a more severe sentence is appropriate. The discretion is that of the Industrial Magistrate, compare Harris v The Queen (1954) 90 CLR 652 at 655-666 per Dixon CJ, Fullagar, Kitto and Taylor JJ. In Lowe v The Queen (1984) 154 CLR 606 at 612, Mason J put the matter thus:

"As the ascertainment and imposition of an appropriate sentence involved the exercise of judicial discretion based on an assessment of various factors it is not possible to say that the sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.".

Here, the fine imposed by the Industrial Magistrate is properly to be characterised as one about which reasonable persons properly instructed as to the circumstances of the case may differ rather than as a fine which is manifestly inadequate.

I dismiss the appeal.

I reserve all questions as to costs.

Dated 14 June 2006.

D. R. HALL, President. Appearances: Mr S. Sapsford and with him Mr P. Matthews of Division of Released: 14 June 2006 Workplace Health and Safety for the appellant. Mr J. McPherson of CLS Lawyers for the respondent.

Government Printer, Queensland The State of Queensland 2006.