Business owner fined and jailed for six months in unprecedented case after fatal forklift accident

Work health and safety legislation in Australia places significant duties and obligations on employers to ensure the health and safety of workers and others in the workplace.

Breaches of work health and safety duties constitute offences under work health and safety legislation and can lead to prosecution by a regulator. Conviction under work health and safety legalisation can result in significant fines and/or imprisonment.

The recent prosecution and conviction of an owner-operator in Victoria demonstrates the serious consequences that breaches of work health and safety obligations can have on businesses and individuals.

A Victorian Magistrates’ Court found the owner of a scrap metal business guilty of breaching the Occupational Health and Safety Act after a worker was fatally crushed by a metal bin.

The company owner was operating a forklift to lift a metal bin which the worker was standing in. When the metal bin was raised in the air, the worker fell through the corroded base of the bin before the bin itself fell from the forklift tines on top of the worker.

The company owner did not, and had never, held a forklift licence and the bin itself had not been properly secured to the forklift.

Worksafe Victoria commenced proceedings against the company owner for breaches of the OHS Act, specifically:

• The duty as a self-employer to ensure, so far as is reasonably practicable, that persons are not exposed to work health and safety risks; and
• The duty not to recklessly engage in conduct that places or may place another person in danger of serious injury without lawful excuse.

The company owner pleaded guilty to both breaches and, in December 2018, was sentenced to six months jail and was ordered to pay a fine of $10,000 plus costs.

This conviction in Victoria is the first for a breach of the duty not to recklessly endanger a worker and indicates the seriousness with which the regulators and the courts will take a failure to comply with work health and safety duties.

As noted above, a breach of work health and safety legislation is a criminal offence and could result in a criminal conviction with penalties including fines or imprisonment or both for individuals and officers.

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