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Guilfoyle v Wild Breads Pty Ltd[2021] QDC 58

Guilfoyle v Wild Breads Pty Ltd[2021] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58

PARTIES:

AARON JOHN GUILFOYLE

(appellant)

v

WILD BREADS PTY LTD

(respondent)

FILE NO:

2742/2020

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 January 2021

JUDGE:

Reid DCJ

ORDER:

Appeal allowed.

  1. 1.Impose a fine of $60 000 on the Respondent Wild Breads Pty Ltd in lieu of the fine of $25 000 imposed by the Magistrate.

CATCHWORDS:

APPEAL FROM MAGISTRATE – BREACH OF HEALTH AND SAFETY DUTY – s. 222 Justices Act 1886 – where the respondent breached a health and safety duty pursuant to s. 19 of the Work Health and Safety Act and the failure exposed an individual to a risk of death or serious injury – where the Magistrate imposed a fine significantly lower than submitted by either party – whether the Magistrate misunderstood the basis of the respondent’s liability – whether the sentence imposed was manifestly inadequate.

LEGISLATION:

Work Health and Safety Act 2011 (Qld) ss 19, 25, 32 and 33

Penalties and Sentences Act 1992 (Qld) s 9

CASES:

Markarian v The Queen (2005) 228 CLR 957

Reynolds v Orora Packaging Australia Pty Ltd (2019) QDC 31

Gartner v Brennan [2016] WASC 89

Williamson v VH and MG Import Pty Ltd [2017] QDC 56

Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Richardson v Ollis Constructions Pty Ltd [2019] QMC 5

Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17

Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150

Bulga Underground Operators v Nash [2016] NSWCCA 37

R v KR; R v JL; R v RJB [2011] NSWCCA 10

COUNSEL:

B J Power for the appellant

A S Mellick for the respondent

SOLICITORS:

Office of the Work Health and Safety Prosecutor for the appellant

BT Lawyers for the respondent

Introduction

  1. [1]
    This is an appeal from a sentence imposed by Magistrate Shearer on the respondent company for an offence under the Work Health and Safety Act (the Act).  The respondent was fined $25,000. The offence was that between 4 October and 20 November 2018 the respondent exposed a worker to a risk of death or serious injury contrary to s. 32 of the Act by failing to comply with its duty pursuant to s. 19 of the Act to ensure, so far as reasonably practicable, the health and safety of its workers.  The maximum penalty for the offence was a fine of $1.5 million.
  2. [2]
    The prosecutor appeals on the following grounds:
    1. (i)
      the Magistrate misdirected himself by taking into account an irrelevant sentencing consideration, that is, the actions of the forklift driver when imposing the sentence;
    2. (ii)
      the Magistrate erred in his interpretation and application of s. 19 of the Act; and
    3. (iii)
      the sentence imposed was manifestly inadequate.
  3. [3]
    The sentence imposed below was unusual in that counsel for the respondent company, which had pleaded guilty to the offence, submitted an appropriate fine was one of $75,000.  The prosecutor submitted a fine of $90,000 ought to be imposed.
  4. [4]
    The Magistrate, for reasons set out in his sentence, and gleaned from comments he made during submissions, determined to impose the fine of $25,000.
  5. [5]
    Before turning to the hearing below it is first helpful to say something about the complaint, including particulars and the agreed schedule of facts.

Complaint

  1. [6]
    The charge can be paraphrased as follows:

“Between the 4th of October 2018 and the 20th November 2018, at Darra, the appellant was conducting a business or undertaking, and held a health and safety duty namely a duty pursuant to s. 19(1) of the Work Health and Safety Act 2011 to ensure so far as is reasonably practicable, the health and safety of workers engaged by the company and workers whose activities in carrying out work were influenced or directed by the company while the workers were at work in the business or undertaking and failed to comply with the said duty and the failure exposed an individual to a risk of death or serious injury contrary to s. 32 of the Act.”

  1. [7]
    Particulars were attached to the charge.  They included the following:

“(5) The hazard giving rise to the risk was the uncontrolled interaction of pedestrians and powered mobile plant, namely forklifts at the workplace, including the packing room. 

  1. (6)
    On or about 20 November 2018 at approximately 4.55 pm at the workplace:
  1. (a)
    Naresh Kumar and Paul Simon Austin were operating Mitsubishi forklifts in the packing room of the Wild Breads Pty Ltd P2 factory;
  1. (b)
    Ashgar Mohammadi was exiting the freezer room and entered the packing room of the P2 factory;
  1. (c)
    Ashgar Mohammadi approached the forklift operated by Paul Simon Austin;
  1. (d)
    Ashgar Mohammadi was crushed between the forklift operated by Naresh Kumar and the forklift operated by Paul Simon Austin.
  1. (7)
    The risk arising out of the hazard of which Wild Breads Pty Ltd ought to have known is death or serious injury to workers, including the risk of soft tissue injuries to the right abdomen of Ashgar Mohammadi, if a person was struck by powered mobile plant.
  1. (8)
    The risk of injury materialised when Ashgar Mohammadi was struck by a Mitsubishi forklift operated by Naresh Kumar resulting in the injuries described in paragraph 7.
  1. (9)
    Wild Breads Pty Ltd did not ensure, so far as reasonably practicable, the health and safety of workers including Ashgar Mohammadi, in that it failed to:
  1. (a)
    provide and maintain a work environment without risks to health and safety;
  1. (b)
    provide and maintain safe systems of work;
  1. (c)
    provide information, training, instruction and supervision that was necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking.
  1. (10)
    Control measures Wild Breads Pty Ltd could have implemented  include:
  1. (a)
    providing and maintaining a safe work environment by ensuring that physical and/or visual separation existed of mobile plant, namely forklifts and pedestrians in the packing room;
  1. (b)
    provide and maintaining a safe system of work, namely providing and implementing a safe system to control the interaction of forklifts and pedestrians;
  1. (c)
    providing instruction, supervision and training of workers in a safe system of work to control the interaction of forklifts and pedestrians.

contrary to the Acts in such case made and provided.”

  1. [8]
    It is abundantly clear from the complaint and the attached particulars that:
  1. the obligation the respondent breached was an ongoing one;
  2. the duty breached was to not expose workers to a risk of injury;
  3. the hazard created by the breach was the risk of physical injury resulting from the uncontrolled interaction of pedestrians and forklifts;
  4. the risk materialised on 20 November 2018; and
  5. appropriate control measures included physical and visual separation of pedestrians and forklifts.

Statement of facts

  1. [9]
    The statement of facts tendered below was a document that could certainly have been more carefully prepared.  Counsel for the respondent, in written submissions before me, submits that it effectively misled the Magistrate by inappropriately concentrating his mind on the events of 20 November solely and had the effect of elevating the negligence of the driver of the forklift which struck the injured worker to become the central issue on the hearing.
  2. [10]
    I do not accept that a proper reading of the schedule of facts, read alongside the complaint including the particulars and, more especially, the transcript below, supports that view.
  3. [11]
    The statement of facts identifies the offence as follows:

“Wild Breads Pty Ltd is charged with one category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011 (“the Act”), that on 20 November 2018, at Darra, it held a health and safety duty, pursuant to s 19(1) of the Act, it failed to comply with that duty, and the failure exposed an individual to a risk of death or serious injury.”

  1. [12]
    There are difficulties with that identification of the offence.  As I have said, the complaint itself alleges that between 4 October 2018 and 20 November 2018 Wild Breads held a health and safety duty pursuant to s. 19(1) of the Act, failed to comply with the said duty, and the failure exposed an individual to a risk of death or serious injury.  The complaint is of an ongoing breach of duty from 4 October to 20 November and not of a breach only on 20 November.
  2. [13]
    The statement of facts also sets out the following:

Summary

  1. (4)
    On 20 November 2018, at the Wild Breads Pty Ltd “P2” bread factory in Darra, a worker was crushed between a stationery forklift and a forklift being reversed by another worker, Naresh Kumar.  The worker received soft tissue injuries.  Kumar was not looking in the direction of travel while reversing the forklift.”
  1. [14]
    There are difficulties, too, with that summary, which fails to summarise the ongoing nature of the breach or identify its being constituted by a failure to ensure separation of forklifts and workers.
  2. [15]
    Nevertheless, the ongoing nature of the breach was obvious to the Magistrate. The schedule of facts sets out, under the subheading “Background”, the following:

“(9) On 4 October 2018, the Workplace Health and Safety Committee of the P2 factory identified forklifts in the packing room as a significant risk.  Line marking and a ‘toolbox talk’ were confirmed as actions required to be taken; however these measures were not implemented by Wild Breads at the P2 Factory.

  1. (10)
    On 7 November 2018, a worker was struck by a forklift in the packing room of the P2 factory without suffering significant injuries.  The implementation of controls was again considered by Wild Breads, including line marking and pedestrian separation barriers; however, these were not implemented prior to the incident the subject of the complaint.”
  1. [16]
    Under a further subheading “The Incident” the events of 20 November 2018, when Ashgar Mohamaddi was struck by the forklift driven by Mr Kumar, are set out.
  2. [17]
    Under a subheading “Failures and Post Incident Conduct” the schedule sets out the following:

“26. Prior to 20 November 2018, Wild Breads assessed the need for a traffic management plan and line markings in P2; however, it had not been finalised.

  1. Wild Breads did not:
  1. (a)
    ensure that an effective traffic management plan was implemented.
  1. (b)
    ensure physical barriers and/or line markings delineating pedestrian and forklift areas was implemented.
  1. Wild Breads undertook the following measures post-accident:
  1. (a)
    delineated the floor with traffic markings and installed barriers;
  1. (b)
    retrained personnel in new and existing procedures.”
  1. [18]
    In my view it is not possible to read the complaint, including particulars, and the statement of facts and not understand that the charge to which the company was pleading guilty involved its failure to put in place visual and physical barriers to ensure workers’ safety by separating pedestrians and forklifts and to implement an effective traffic plan.  Whilst the negligent act of the forklift driver was the immediate cause of the risk of injury materialising, the charge against the company involved acts and omissions for which the company was directly responsible. The breach was not one for which the company was merely vicariously liable for Mr Kumar’s negligent operation of the forklift. It was a distinct and ongoing breach, by the company, over the duration of the charged period.

The Hearing Below

  1. [19]
    Despite this clear enunciation of the liability of the company, the Magistrate, from the commencement of the hearing, was unduly focused on his personal view that the driver of the forklift was responsible for what occurred, and the company was, in his opinion, simply unable to preclude him from operating the forklift negligently.  There are numerous examples of the Magistrate professing such a view.  He said (at page 1.3 of the transcript): “There’s not much the company can do about an individual’s stupidity though, is there?  At line 20 of the same page he said:

“Why is it even necessary to have a procedure to tell people that when they’re reversing they have to look over their shoulders in the direction that they’re going… Have we become that much of a nanny state you’ve got to tell people how to exist.” 

  1. [20]
    At page five the Magistrate who had been referred to the need for both a specific and general deterrence and the need for the company to take a proactive approach said:

“Yes, but doesn’t this have to be balanced against the individual’s stupidity… how can you make someone look over their shoulders when they’re reversing, apart from telling them to do it?”

  1. [21]
    The prosecutor immediately referred to the need for controls such as line markings and barriers so that the pedestrian would not have interacted with the forklift but the Magistrate said: “That wouldn’t have stopped him not looking over his shoulder.”
  2. [22]
    The prosecution responded that it “would not have, that is true… but it would have prevented the interaction of the pedestrian and the forklift”, thereby again drawing the Magistrate’s attention to the true nature of the company’s breach.
  3. [23]
    The Magistrate later indicated that in his opinion the driver of the forklift “was stupid” and said “I don’t see how his stupidity ought to be sheeted home in its entirety to the employer and there’s no permanent injury”.  He said it’s “this persistent infantilisation of our society that I have a problem with.”  The Magistrate continued with this unfortunate misunderstanding of the nature of the company’s liability, saying (at page 1.9, line five):

“there’s got to be a point at which the employer’s liability… which is almost absolute… is just mitigated by individual stupidity… What can a company do to mitigate for individual stupidity… that’s the issue I’ve got.”

  1. [24]
    The Magistrate’s pre-occupation with the negligence of the driver of the forklift, and his own failure, it seems to me, to comprehend that the case against the company was related to its failure to have in place an effective traffic management plan including visual line markings and barriers to separate forklifts from pedestrians, continued when he said (at T1-12, line 28 ff):

“I just wonder… to what extent when this whole incident was the result of Kumar’s stupidity… so to what extent should liability then be extended to the company?”

  1. [25]
    At page 13 he continued:

“there just seems to be this assumption that merely because… the company is an employer therefore liability must accrue to them at some multiple level in comparison to the liability of the person who actually causes the problem in the first place… in reality what more can an employer do?  Put some lines on the floor? All right.  Well, what does that achieve if the forklift driver doesn’t watch where he’s going in the first place?... what, short of encasing his head in some sort of vice to make it look in the direction it’s supposed to go, what can an employer do?”

He continued:

“Why should an employer… have to try to divine every incident of possible stupidity that their employees might descend to during a work day?  There’s got to be some point which the – enough is done and it’s the employee’s fault if they injure themselves.”

  1. [26]
    It is of course the case that it was not the driver of the forklift who was injured, but a pedestrian.
  2. [27]
    The Magistrate continued with such views, saying (at T1-15, line 15) when the prosecutor expressed the view that the driver was not the one and only cause of the incident: “Well I think he is.  If he was looking where he was going, it wouldn’t have happened.”  Again the prosecutor, no doubt frustrated by the Magistrate’s refusal or inability to understand the nature of the company’s ongoing breach of duty, pointed out that the company had an obligation to have in place control measures and did not have them.  The magistrate then said (at T1-15, line 19 ff):

“They’ve got an obligation to take reasonable steps to mitigate the risk not to have to divine every conceivable risk and mitigation strategy they could think of.  I mean, where does it end?”

  1. [28]
    The Magistrate then said that it was:

“…fine to reconstruct these things in hindsight. But at the time that this occurred, isn’t it perfectly reasonable for the employer… if Kumar hadn’t reversed into this bloke none of this would have come up.  So it’s fine to reconstruct this sort of thing in hindsight.  But as I was saying earlier… why shouldn’t the employer be able to rely upon the State’s testing and certification of this fellow as being competent to operate a forklift without having to descend to marking lines and all the rest of it you say should be done in a warehouse where forklifts are coming and going all the time.  Where they’ve employed someone who’s supposedly experienced and has been licensed to operate the thing, and where it’s a reasonable inference to draw in those circumstances that the operator understands that when you are travelling in a certain direction, that’s the way you look at the same time… it’s not an obligation to prevent [accidents].  It’s just to take reasonable steps.”

  1. [29]
    Subsequently he resiled somewhat from this unusual and extreme view of an employer’s liability and (at T1-17) said:

“I’d say 90 per cent of the fault is Kumar’s.  There may be some minor fault for the company because it didn’t have… line markings for example but that wouldn’t have prevented the accident… in some cases, it’s obvious that it’s the employer’s fault.  But a matter like this, it’s not, in my view.”

  1. [30]
    He later said: “It’s almost wholly the fault of the forklift operator.”
  2. [31]
    The tenor of these remarks is repeated in Magistrate Shearer’s sentencing remarks.
  3. [32]
    In them he said:

“in my view an employer is entitled to rely upon the obvious assumption that someone who has been licensed by the state to operate a forklift has been appropriately trained, tested and certified to be able to do that properly and safely without having to descend to issues such as… telling the employee to look at the direction of travel… Even if there had been lines on the floor, and some sort of other barrier, that, of itself, would not have necessarily prevented the accident.”

  1. [33]
    The Magistrate then said:

“The fellow that was knocked over by the forklift, it seems, was not operating in the way he was supposed to, in the first place, but secondly Kumar was operating in a manifestly negligent and unsafe manner in breach of the standard operating procedure.”

  1. [34]
    He continued, making the following remarks:

“There has to be a point at which common sense has to apply in relation to the extent to which an employer has liability, culpability, sheeted home to them.  It is very easy to come [up] with all sorts of schemes in hindsight as to what could or should have been done to prevent an injury, but, as I have said, an employer must – or is entitled to proceed on the basis that – on the expectation that (an) … appropriately qualified licensed employee is going to use his common sense.”

“It may be the fact…that the employer had identified that there could have been improvements made in relation to separation of pedestrians and forklifts in the warehouse… but in my view it would not have particularly mitigated this incident.”

“In my view, the only blame that can be laid upon the employer is that it did not sooner implement a few additional measures that it has since implemented in relation to the separation of pedestrians and forklifts.  But as I say, having regard to the fact that the employer was entitled to rely upon the employee abiding by the operating procedures and entitled to expect that an appropriately trained and licensed employee would operate machinery in the way they were supposed to, in my view, the blame is lessened significantly.”

  1. [35]
    After having referred to the fact that over a period of about 10 years the employer had been prosecuted for safety offences on four occasions, and spoken of the relevance of that as to whether or not a conviction should be recorded, the Magistrate concluded:

“This incident was entirely caused by the negligence and carelessness of a single employee operating in a way he was not supposed to, that the asserted changes to operating procedures that had been advanced by the prosecutor, in my view, would not have done much to change.”

  1. [36]
    In that circumstance His Honour determined to fine the company $25,000.000, and to record a conviction.

Approach Against Inadequate Sentence

  1. [37]
    The approach on an appeal on sentence was considered by the High Court in Markarian v The Queen (2005) 228 CLR 957 where at [25]-[27] Gleeson CJ and Gummow, Hayne and Callinan JJ, in a joint judgement, said:

“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case. In sentencing for a federal offence, it must begin by considering Pt 1B of the Crimes Act. In the present case, it must begin with the provisions of the Sentencing Act.

Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”

  1. [38]
    In Reynolds v Orora Packaging Australia Pty Ltd (2019) QDC 31 at [7], McGill QC DCJ identified that it was necessary, before a Judge could increase a sentence on appeal, for the appellant to show:
    1. (i)
      the sentence was the result of some legal, factual or discretionary error; and
    2. (ii)
      an appropriate sentence was one which was more severe than that imposed; and
    3. (iii)
      to show that the discretion to vary the sentence imposed ought be exercised in favour of the appellant.

Error

  1. [39]
    It is clear the Magistrate misunderstood, or refused to understand, the true nature of the company’s breach.  In particular, his repeated references to the fact that physical barriers would not have obviated or at least minimized the risk, is almost unintelligible.
  2. [40]
    There can, in my view, be no doubt the Magistrate has approached the matter from an incorrect legal and factual basis.
  3. [41]
    In coming to the conclusion that the Magistrate approached the matter from an incorrect legal and factual basis, I am mindful of the need to consider whether he may perhaps have merely expressed himself infelicitously during a busy day in court.  I note he determined the matter expeditiously, delivering his decision immediately after argument.
  1. [42]
    Counsel for the respondent referred me to the following observations of Pritchard J in Gartner v Brennan [2016] WASC 89 at [58]:

“Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language.  The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached.  The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made,  and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).” (References omitted.)

  1. [43]
    In this case, however, it is such an examination of the Magistrate’s underlying intellectual processes that causes me to conclude he has proceeded on an incorrect basis.  That error emerges not from over-keenly scrutinising his reasons with a view to detecting error, but from an examination of his quite open refusal to accept the true nature of the employer’s breach was in not undertaking appropriate steps to ensure visual and physical barriers were in place to separate forklifts and pedestrians.  He himself chose to approach it on the basis that the employer was vicariously responsible for the driver’s negligence.  He appears to have been fixated on the view that to have required the employer to have taken wholly appropriate steps was an example of what he disparagingly referred to as the “nanny state” and “this persistent infantilisation of society”.
  2. [44]
    Examination of the public record shows in fact that such protective conduct has over many years resulted in the saving of many lives, a significant reduction in serious injury and countless hours of saved productivity through a marked reduction in industrial accidents in Australia. 
  3. [45]
    Counsel for the respondent submitted that the Magistrate’s comments to which I have referred concerning a nanny State and the infantilisation of society, and other such comments as set out in para 11 of the appellant’s written submissions, were an attempt by the Magistrate:
  1. to distinguish this case from others said to be comparable by the parties; and
  1. to have the parties address relevant issues having regard to s. 9(2)(c),(d) and (e) of the Penalties and Sentences Act, given the prosecutor’s emphasising of the incident of 20 November, the fine of only $3,000 imposed on the driver of the forklift and the need for proportionality between that fine, and the fine to be imposed on the company, particularly because of s. 9(2)(r) of the Penalties and Sentences Act.
  1. [46]
    I do not accept that to be a proper characterisation of the Magistrate’s remarks.  His comments about the nanny State and infantilisation of society and others that he made, many of which are set out in this judgment, indicate the Magistrate did not comprehend the true nature of the company’s breach.
  2. [47]
    It was, as I have said, made clear to the Magistrate on numerous occasions that whilst the incident of 20 November was the culminating event which resulted in injury to a worker, the company’s default was an ongoing breach of the kind I have made clear, and which was made clear in the proceedings below.
  3. [48]
    It was submitted by the respondent that it was, in the circumstances, unsurprising the Magistrate had commenced his sentencing remarks by stating that the offence was “related to this stupidity of Mr Kumar” and unsurprising he had also said “nothing… that (the respondent) could have done would have changed Kumar’s behaviour.”
  4. [49]
    To the contrary, in my view it was surprising that the Magistrate approached the matter in that way.  He gave scant regard to the respondent’s far wider breach of the Act by not ensuring appropriate visual and physical barriers were in place.  I note the respondent accepts, in [19] of its written submissions, that the traffic management plan, if complied with by workers, would have eliminated the presence of the worker from the place where he was struck by Mr Kumar’s forklift.  The presence of visual and physical barriers would have gone a long way to overcoming the risk of the incident materialising.  This appears to have been largely, even consciously, overlooked by the Magistrate.
  5. [50]
    Whilst, as I have said, the statement of facts was not sufficiently carefully prepared, I do not accept it misled the Magistrate.  On a number of occasions the prosecutor sought to bring the Magistrate to a realisation the offence was an ongoing one related to the company’s failure to put in place appropriate control measures including physical and visual barriers, and that risk of injury materialised on 20 November. 
  6. [51]
    The prosecutor referred to a discussion at a Tool Box talk at the factory concerning line markings that had taken place six weeks earlier (see T1-4, line 25 ff).  Implementation of those same controls, including markings and also separation barriers, was again considered after another worker was struck by a forklift on 7 November 2018 (see T1-4, line 33 ff).  In a discussion with the Magistrate (at T1-5, line 23 ff), the prosecutor submitted that if such matters had been implemented, the worker would not have been injured. The Magistrate responded that such matters would not have caused the driver to look where he was driving.  The Magistrate’s response to the prosecutor’s submission that barriers to prevent interactions are common place was to say (at T1-13, line 34) “[h]ow do you operate a warehouse with barriers all over it.” 
  7. [52]
    In the circumstances I am satisfied the sentence was the result of the Magistrate’s misunderstanding of the proper basis of the respondent’s culpability. 

Was the appropriate sentence more than was imposed?

  1. [53]
    It is a feature of the case that both the respondent, and the appellant, contended for a greater penalty than was imposed – and by a considerable margin.  But that is not determinative of the question of whether a greater penalty was appropriate.
  2. [54]
    In Williamson v VH and MG Import Pty Ltd [2017] QDC 56 the respondent had been fined $90,000, with no conviction recorded, for a breach of s 32 of the Act for failing to comply with a health and safety duty under s 19(1) of the Act, which exposed persons to a risk of death or serious injury.  The charge therefore was the same as in this case. 
  3. [55]
    In that case however, a worker died as a result of suffering injury when a gas strut on a boat rack forcefully exploded causing a cylinder to strike and penetrate his skull.
  4. [56]
    In manufacturing the boat rack the respondent company used poorly trained and unqualified staff. No risk assessment was conducted. No written work procedures were in place. The incident arose because of the catastrophic failure of the strut.
  5. [57]
    In imposing a penalty of $90,000, the learned Magistrate in that case ruled that the respondent was “not a company which is reckless of its employees and their welfare”. It was also said to be “a small business operating on slim margins”. It had been cooperative in the investigation and compassionate to the victim’s family.
  6. [58]
    On appeal, Dearden DCJ allowed the appeal and increased the fine to $125,000.  His Honour concluded the Magistrate failed to take into account the gravity and seriousness of the employer’s breaches and the loss of a workers life. His Honour noted that the legislation is part of a harmonised national workers health and safety scheme for Australia and that a sentencing Judge should therefore “have regard to current sentencing practices throughout the Commonwealth”. Accordingly, his Honour took into account decisions in other jurisdictions involving breach of s. 32 of the Act in relation to duties owed under s. 19 by corporate defendants.
  7. [59]
    That approach to decisions in other jurisdictions was followed by Fantin DCJ in Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd [2018] QDC 20 to which I shall shortly refer.
  8. [60]
    The matter has subsequently been considered by two other decisions of this court – Reynolds v Orora Packaging Australia Pty Ltd (supra) and Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150 per Chowdhury DCJ.
  9. [61]
    In the first of those decisions, McGill QC DCJ also noted that the Act was part of a national scheme of uniform legislation and that, as a consequence, decisions of courts in other States were relevant in determining questions of statutory construction. But, as his Honour points out at [12] of his judgment, the provisions of the Penalties and Sentences Act 1992 (Qld) are relevant to sentences imposed in Queensland and such legislation is not uniform throughout the Commonwealth, with the result that decisions on sentences from other States may not be of great assistance. That view was subsequently endorsed by Chowdhury DCJ in the Tailored Adventures case (at paragraph 73).  I agree with that approach.
  10. [62]
    In the case before him, Dearden DCJ, having determined that the appropriate range of penalty was from $200,000 to $400,000, decided that a fine of $250,000 was appropriate. His Honour then said at paragraph 77:

“However, in the particular circumstance of the respondent company, the lengthy delays that have occurred in bringing this matter to finalisation, the issues involved with the Barbaro decision and its legislative overruling, and given that this is the first appeal to address the issue of the harmonised national work health and safety laws, it is appropriate to substantially ameliorate the penalty that would otherwise be appropriate. Accordingly, I consider the penalty on resentence should be a fine of $125,000.”

  1. [63]
    A significant feature of the matter before Dearden DCJ was of course the death of the worker but it is important to understand that but for the particular matters set out in the previous paragraph, a fine of $250,000 would have been imposed. Those matters are not of relevance in this case.
  2. [64]
    In Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd (supra) the court was concerned only with a minor injury to a worker and the charge itself was also less serious, being one under s. 33 of the Act. The respondent employer was charged under that provision with failing to comply with the health and safety duty under s. 25(2) of the Act so far as reasonably practical. The maximum penalty for a company was a $500,000 fine, compared to $1.5m in the matter before me.
  3. [65]
    In fact the Magistrate in Mac Plant fined the company only $2,000. This was increased on appeal to $35,000. A $10,000 fine was also imposed in lieu of an original sentence of $1,000 on a related company which, although not the employer, was responsible for management of the farm where the accident occurred including management of its workers.
  4. [66]
    The subject incident involved a backpacker working on a banana farm and suffering very minor injuries when thrown from a seat of a tractor when, due to his own negligence, he drove it off a road and into a ditch. The respondent was a large farm operator. The tractor had roll over protection but did not have a seatbelt. The worker said he would not have used it, even if a seatbelt had been fitted and acknowledged the accident arose because he drove it too fast and consequently lost control.
  5. [67]
    After the accident the respondent took a number of steps to improve safety, made full admissions and had no prior relevant history. It was also known to be a good corporate citizen.
  6. [68]
    In imposing the fine below, the Magistrate placed significant weight on the actual rather than the potential consequences of the risk and the operator’s own error and expressed unwillingness to use a seatbelt.
  7. [69]
    On appeal, Fantin DCJ concluded that in placing such weight on the minor actual injury the Magistrate erred because the risk to be assessed does not involve only consideration of the actual injury, but the potential risk arising from the respondent’s failure to take reasonable practicable steps to avoid the injury. In so concluding, her Honour relied on observations of the New South Wales Court of Appeal in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, as set out at paragraph 68 of her Honour’s decision in the Mac Plant case.  Such considerations are of great importance in this matter too.
  8. [70]
    Her Honour noted that because the legislation, in both Queensland and throughout the Commonwealth, was new, there was a lack of comparable appellate decisions either in Queensland or elsewhere.
  9. [71]
    From the Court of Appeal decision in Nash v Silver City Drilling (supra) her Honour identified a number of significant features relevant to sentence namely:
  1. the potential consequences of the risk.
  1. the probability of the risk.
  2. the availability of steps to lessen, minimise or remove the risk.
  3. whether such steps are complex or burdensome or only mildly inconvenient.

I accept that such matters are of importance.

  1. [72]
    The court in Nash had noted that the culpability of the respondent was not necessarily determined by the remoteness of the risk occurring, nor by a step by step evaluation of the various elements.  Rather, the court said, “culpability will turn often on overall evaluation of various factors”.
  2. [73]
    In the matter before me, the fact that the worker who was injured suffered no long-term injury is a relevant factor drawing one towards a more lenient sentence. So too does the factor which, in my view, overwhelmed the Magistrate – that the negligence of the driver of the forklift caused the risk to materialise – tend to reduce the respondent’s culpability.
  3. [74]
    Correspondingly however, injuries in workplaces very often result from the neglect of a worker, even the injured worker. The employer’s obligation is to take appropriate steps to guard against such risks materialising.
  4. [75]
    The risk of serious injury to a pedestrian struck by a forklift, and more so when squashed between two forklifts, is a real one. The consequences of such an incident are potentially life threatening. In the absence of appropriate visual, and more especially, physical barriers, the prospect of the risk materialising is a very real one. That was obvious to this employer as another employee had been struck only a short time prior, on 7 November. The implementation of visual and physical barriers had been discussed but not implemented.  Despite the Magistrate’s expressed view “how do you operate a warehouse with barriers all over it”, to do so is not beyond the wit of an appropriately concerned employer.  And of course it was not beyond the wit of this employer, who subsequently installed such barriers.  The respondent’s explanation that it was necessary to move significant machinery to do so does not adequately explain its delay in implementing a safe workplace despite steps taken by the respondent prior to 20 November as set out in [31] of its written submissions before the Magistrate.
  5. [76]
    Such factors draw a person charged with imposing a sentence in the direction of an increased penalty.
  6. [77]
    Subsequent to the accident on 20 November, the respondent company has in fact delineated the floor with traffic markings, implemented a new traffic management plan, installed physical barriers and retrained staff.  That is to the respondent’s credit but does indicate that these appropriate steps ought to have been implemented earlier.  To do so would perhaps have obviated, and certainly very significantly minimised, the risk of an incident such as that which occurred on 20 November.
  7. [78]
    All such factors were identified in the hearing below.  Indeed they were largely set out in the particulars of the charge.
  8. [79]
    Before the Magistrate, it was identified that the company had been prosecuted in 2011 and 2012 for other unrelated offending and fined $42,000 and $8,000 respectively, with no conviction recorded.  In February 2020, it was fined $90,000 and a conviction was recorded.  Again that breach was unrelated to issues associated with forklifts.  All those prosecutions concerned issues with the production line itself.
  1. [80]
    Because the legislation is new, there are a limited number of comparable cases.  The respondent, in careful written submissions below, referred, in addition to Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd (supra) and William v VH and MG Imports Pty Ltd (supra), to Richardson v Ollis Constructions Pty Ltd [2019] QMC 5; Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17 and Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150.  Details of those decisions were attached to the written submissions of the respondent and provided to the Magistrate.  Each of Richardson, Guilfoyle and Reynolds involve prosecutions under s. 32 of the Act, as in the case I am concerned with. 
  1. [81]
    The fines imposed were $75,000 in each of the first two cases and in the Tailored Investments case a fine of $50,000 was imposed on a successful appeal, in lieu of one of $40,000 imposed in the Magistrates Court. 
  2. [82]
    In that case the breach of duty by the company resulted in a customer of the business suffering significant fractures which required surgery.  Her accident happened due to a fault in a ZipSTOP braking system on a zip line.  The braking system was purchased a little over 12 months prior to the incident but had been installed by employees of the respondent company only some four months prior to the incident.  The zip line course had been twice inspected by engineers, but the engineers said the ZipSTOP unit was not included in the inspection.  The respondent believed it was.  The consequence of that misunderstanding was that it was not inspected.
  3. [83]
    In addition, the company performed periodical inspections of the zip lines and components. 
  4. [84]
    The company entered an early plea, was cooperative in the investigation and had no prior convictions.
  5. [85]
    The hazard giving rise to the risk was found to be the inadequacy of inspection and maintenance and the failure to use a rope protected by a sleeve to prevent friction damage as recommended by the manufacturers.  It was such friction damage which resulted in the failure of the ZipSTOP braking system at the time of the accident. 
  6. [86]
    Unlike the subject case however, the company had no notice of the imminent nature of the risk or knowledge of the inadequacy of the system.  In that case the system had operated without the respondent being aware of the impending failure of the system for some time.
  7. [87]
    By contrast, in this case the respondent was aware of the inadequacy of the system and of the risk that forklifts posed, but had not yet rectified it.  The Magistrate in the Tailored Adventures case referred to the incident coming about due to the company’s oversight.  That is, in my view, a material difference between that case and this.
  8. [88]
    In allowing the appeal in that case, Chowdhury DCJ carefully considered a number of cases involving, like this matter, a breach of s. 32 of the Act.
  9. [89]
    In the course of his consideration, his Honour referred to a New South Wales decision of Bulga Underground Operators v Nash [2016] NSWCCA 37 where at [158], the Court referred to an earlier decision of the Court in R v KR; R v JL; R v RJB [2011] NSWCCA 10 pointing out that the level of objective seriousness of a particular offence is classically an assessment within the role of the sentencing Judge.
  10. [90]
    In this case, the Magistrate appears not however to have turned his mind seriously to that issue.  Rather, he appears, as I have said, to have been diverted from that task by his preoccupation with the negligence of the forklift driver himself, and the lack of actual serious injury.  His comments included that:
  1. The employer is entitled to rely upon the obvious assumption that someone who has been licensed to operate a forklift has been trained and certified to do that safely;
  2. Even if there had been visual and physical barriers, that would not have necessarily prevented the accident, due to the negligence of the injured worker himself and of the driver;
  3. The Act “grosses up the maximum penalty” for a corporation but he, the Magistrate, had not heard any reasoned and logical argument to justify why that was so.  Such greater penalties for corporations were something the Magistrate said he “did not agree with”.  It is, of course, a fact that the Act imposes a maximum penalty ten times greater for corporations than for individuals, no matter what the Magistrate’s contrary personal views; and
  4. The comparable decisions referred to the Magistrate – which he described as so-called comparable but which he did not regard as comparable – each he said involved “far more significant injuries and far greater culpability”.
  1. [91]
    The Magistrate, who described this breach as involving “the injured worker only suffering some soft tissue injuries, having been briefly caught between two forklifts”, did not turn his mind to the fact that the situation could easily have been so much worse.  The employer’s ongoing breach in failing to have in place visual and physical barriers significantly increased the risk of a worker straying into the area he did and so significantly increased the risk of death or serious injury.  This was an element of the charge to which the company had pleaded guilty but the Magistrate gave no, or at least very scant, regard to that risk.
  2. [92]
    In my view, characterising the offence in the way he did was not open to him.  He was bound, in my view, to accept the company’s breach of duty involved exposing the worker to a risk of death or serious injury.  The fact that such death or injury did not eventuate is a relevant consideration, but does not mean a proper assessment of the level of seriousness can be avoided in the way the Magistrate did.  Exposing the worker to a risk of death or serious injury is an element of the charge to which the company pleaded guilty. 
  3. [93]
    The penalty imposed was manifestly inadequate.  A much greater penalty ought to have been imposed.  Having regard to other decisions which have been imposed, the objective seriousness of the risk, the fact that the corporation had prior findings of guilt in respect of breaches of the Act, and the fact that the breach continued over a period of about 7 weeks, but also the minor injury to the worker, an appropriate penalty in this case is in the range of $60,000 to $100,000. 

Discretion

  1. [94]
    The third factor identified in Reynolds v Orora Packaging Australia Pty Ltd (supra) which must be overcome if an appeal is to be allowed is to show that the discretion to vary the sentence originally imposed ought to be exercised. That is particularly so in relation to appeals by the Crown against the inadequacy of a sentence.  In my view, the same approach should be taken with appeals such as this by a prosecuting authority rather than the Crown.
  2. [95]
    It is also relevant that decisions under the uniform legislation are still relatively rare and that guidance should be given to aid Magistrates charged with imposing sentences at first instance.
  3. [96]
    No factor was identified before me to suggest that, if the sentence below was infected by error, and the sentence imposed ought have been more severe, I ought not to interfere.

Determination

  1. [97]
    Having regard to the fact that this is an appeal by the prosecuting authority, I would allow the appeal and impose a fine of $60,000 in lieu of the fine of $25,000 imposed by the Magistrate. 
  2. [98]
    I will hear any further submissions about consequential orders.
Close

Editorial Notes

  • Published Case Name:

    Guilfoyle v Wild Breads Pty Ltd

  • Shortened Case Name:

    Guilfoyle v Wild Breads Pty Ltd

  • MNC:

    [2021] QDC 58

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    09 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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