WORKER FINED $30,000 FOLLOWING THE DEATH OF AN ELDERLY VISITOR

OVERVIEW

The Brisbane Magistrates’ Court has fined a worker $30,000 following the death of an 80-year-old man who became trapped in a disused stairwell in a Brisbane high-rise building.  The worker had been employed as the Facilities Manager for the building and failed to fulfil his duty to manage the hazard, despite being aware of two previous entrapments in the stairwell.    

This month’s Safety Moment reminds directors that:

  • workers have non-delegable duties under work, health and safety laws, breach of which can result in prosecution; and
  • directors have a responsibility to create a safety culture that places a high level of importance on safety beliefs, values and attitudes.

What happened?

On 17 May 2022, Bruce Johnston, an 80-year-old man travelled to the high-rise building to meet with his accountant on level 4.  Mr Johnston asked the receptionist if he could use the bathroom, and was directed to an alcove near the lifts which had three doors.  On the left was a door to a male toilet, on the right a door to a unisex toilet, and in the centre was a door that had on it a laminated sign that said ‘No Exit’. 

 

Mr Johnston mistakenly walked through the centre door, which led to a disused stairwell.  The stairwell had previously been used by a tenant who had occupied both level 3 and 4 of the building.  When the tenant left the building in 2016, alterations were made to the stairwell doors.  The stairwell door at level 3 was covered in plasterboard, and the door at level 4 was fitted with an automatic lock.  The effect – a person who entered the disused stairwell would be unable to exit.

 

When Mr Johnston failed to return home that day, his family raised alarms.  He was later discovered in the stairwell, deceased.

 

Previous entrapments

In the eight months leading up to Mr Johnston’s death, the worker had been aware of two entrapments in the stairwell that occurred between 2020 and 2021.

 

In one of those incidents, a contractor had been forced to use a crowbar to prise open the door to the stairwell.  The worker had sent an email to the contractor’s boss in which he complained about the damage to the door, and asked how it would be fixed.  The worker did not report the incident to his employer, nor did he take action to control the hazard.

Takeaways for Directors

Boards, officers and directors should be aware that:

  • Work, health and safety offences are risk based rather than outcome based. Courts will take into consideration the gravity of the breach of duty owed under the Work Health and Safety Act. The gravity is measured by likelihood of the occurrence of an event as a result of the breach, and the seriousness of the potential consequence of the breach.
  • General deterrence is a predominant consideration in sentencing. The objective seriousness of the breach is the primary factor in determining the appropriate penalty.  Mitigating factors that are subjective to the offender (e.g. plea of guilty, remorse or previous good character) play a subsidiary role. 
  • Serious penalties can be awarded against both the PCBU and its directors and officers, even where the PCBU generally has a good safety culture or this would result in a sole director being responsible for two financial penalties.

Liability of the worker

Magistrate Pinder noted upon viewing photographs of the three doors, that it was easy to see how Mr Johnston had become confused. 

In finding the worker guilty of breaching sections 21 (failure to comply with a health and safety duty) and 28 (duties of workers), Magistrate Pinder noted the following:

  • given that the worker was aware of the previous incidents, it was foreseeable to him that entrapment could occur with catastrophic consequences
  • despite the worker’s role and responsibility in the building, he did not remedy the stairwell hazard or report the hazard to his employer
  • following Mr Johnston’s death, the hazard was effectively eliminated almost immediately at a small cost  
  • the importance of general deterrence, particularly where members of the public could be exposed to the hazard.

Having regard to the above and mitigating factors including the worker’s early plea of guilty and expressions of remorse, Magistrate Pinder imposed a $30,000 fine (where the maximum fine was $150,000).  No conviction was recorded.

It is unclear whether the PCBU and/or officers were prosecuted by WorkSafe.    

Implications for directors

Directors and officers have an important role in developing an organisation’s safety culture (i.e. ‘the way we do things around here’), and this falls within the scope of the duty of ‘due diligence’ under the Work Health and Safety Act 2011 (Qld) (WHS Act).

To confirm that an organisation has a positive safety culture, directors and officers may consider the following:

  • communicate company values – is a ‘safety first’ approach taken as part of everyday values and actions? For example, is this communicated by policies, safety posters, toolbox talks, ‘walk-arounds’ by management, and regular enforcement?
  • demonstrate leadership – do senior managers lead from the top by: seeking staff engagement when developing ‘safety’ tools (e.g. checklist inspections, safe work method statements, job safety analyses), wearing personal protective equipment and conducting periodic checklist inspections, risk assessments and toolbox talks?
  • clarify required and expected behaviour – does the organisation use position descriptions, employment agreements, emails, informal conversations and toolbox talks to communicate expectations?  Are inappropriate behaviours promptly addressed?
  • develop positive safety attitudes – do you encourage managers, employees and subcontractors to challenge unsafe behaviours and attitudes in others, and to recognise and encourage those who have shown a positive attitude towards safety?
  • increase hazard/risk awareness and preventative behaviours – do you have evidence that hazard-specific training is regularly provided to the workforce?
  • improve understanding and effective implementation of safety management systems – do you have a practical understanding of how work is performed in the workplace?  Have you made site visits to all areas of the organisation? 
  • monitor, review and reflect on personal effectiveness – does work, health and safety appear as a board agenda item? Do you have access to meaningful reports and information to allow you to identify the true effectiveness of culture and safety behaviours?  Has your safety system been subject to an external audit?  

Education reminder

Section 28 – Duties of workers

While at work, a worker must –

(a)     take reasonable care for his or her own health and safety; and

(b)    take reasonable care that his or her acts of omissions do not adversely affect the health and safety of other persons; and

(c)    comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d)    co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Section 32 – Failure to comply with health and safety duty – category 2

A person commits a category 2 offence if –

(a)     the person has a health and safety duty; and

(b)    the person fails to comply with that duty; and

(c)    the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty –

(a)     for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – 1,500 penalty units; or

(b)    for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – 3,000 penalty units; or

(c) for an offence committed by a body corporate – 15,000 penalty units

Where to from here?

We provide training to boards, officers and workers as to their duties under the WHS Act.  If you would like further information, or to arrange a training session contact EmploySafe Legal.

The information contained in this Safety Moment is intended as a guide only.  You should seek professional advice before applying any of the information to particular circumstances.  Whilst reasonable care has been taken in the preparation of this update, EmploySafe Legal does not accept liability for any errors it may contain.

 

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497
kate.simpson@employsafelegal.com.au 

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