First workplace manslaughter in Australia

This article is the first of a new In Brief series called Statutory Liability Report in which Fee Langstone team members focus in on developments from recent statutory liability cases.

R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113

In our February 2020 issue of InBrief, we discussed how two further Australian jurisdictions (Victoria and the Northern Territory) had passed workplace manslaughter laws.  Now, Australia has had its first workplace manslaughter sentence.

The sentence was imposed in Queensland, pursuant to workplace manslaughter laws, which have been in force since 2017 following an amendment to Queensland’s Workplace Health and Safety Act 2011.

The Case

In May 2019, a worker for Brisbane Auto Recycling Pty Ltd (Brisbane Auto) was struck by a reversing forklift and crushed between the forklift and a parked truck.  The worker passed away a week later from the injuries he sustained in the accident.

Brisbane Auto was charged with industrial manslaughter pursuant to s 32C of the Work Health and Safety Act 2011 (Qld).  Brisbane Auto’s two directors, Mr Hussaini and Mr Karimi, were each charged with reckless conduct pursuant to s 31 of the Work Health and Safety Act 2011 (Qld). 

The Court concluded that Brisbane Auto’s conduct had caused the death of the victim.  It found that Brisbane Auto had no safety management systems or any written work health and safety policies.  Further, there were no risk assessments or controls for moving plant, which contributed to the lack of safety culture in the workplace.  As a result, Brisbane Auto was found to have failed to control the interaction of mobile plant and workers, to effectively separate pedestrian workers and mobile plant, and failed to effectively supervise operators of moving plant and workers.

Further, the Court found that the directors were aware of Brisbane Auto’s safety failings but had consciously disregarded that risk.  That offending was also noted to have been a continuing breach in that Brisbane Auto had been operating for several years and it had increased in size, both with regards to the number of employees and mobile plant.  By failing to control the risk to workers, the conduct of the directors was deemed to have been reckless.

The Sentences

Brisbane Auto was convicted of industrial manslaughter and fined AUD$3 million (maximum penalty being AUD$10m) while its directors were convicted for reckless conduct resulting in the death of a worker.  The directors were sentenced to 10 months imprisonment each, but those terms were suspended subject to what we would describe as “good behaviour” conditions.

The Court would have sentenced the directors to longer terms but found that, as they were refugees, there was a risk that they could be deported out of Australia on character grounds.

Comment (Bradley Alcorn)

Although industrial manslaughter does not exist in New Zealand (yet), this case presents an interesting guide for how such offences will be considered in Australia and, perhaps in time, how they might be approached in New Zealand (bearing in mind that significant areas of our current health and safety laws originated in Australian legislation).

This is also a useful reference for insurers and insureds when dealing with issues of recklessness.  Statutory liability policies in New Zealand normally exclude claims involving recklessness or deliberate disregard of the provisions of any Act.  Recklessness/deliberate disregard is not considered by the courts often.  Accordingly, examples of how such behaviour is identified and addressed by the courts (even if they are in an Australian jurisdiction) provide a valuable tool to help insurers and insureds identify and avoid such behaviour.

Bradley Alcorn is a Senior Associate at Fee Langstone