Brisbane Auto Recycling Pty Ltd was convicted and fined $3 million in the Queensland District Court yesterday, after pleading guilty to causing the death of the worker, and being “negligent about causing the death,” contrary to section 34C (“Industrial manslaughter–person conducting business or undertaking”) of the QLD Work Health and Safety (WHS) Act.

It was the highest WHS fine ever imposed in Australia, although, this was not surprising considering the maximum fine of $10 million for the relatively new offence was triple that of the previously available maximum WHS penalty.

Brisbane Auto Recycling directors Asadullah Hussaini, 25, and Mohammad Ali Jan Karimi, 23, were both convicted and sentenced to 10 months’ imprisonment, wholly suspended for 20 months, after pleading guilty to breaching sections 27 (“Duty of officers”) and 31 (“Reckless conduct–category 1”) of the Act.

The killed worker was Barry Willis, a father of four and grandfather to six who was engaged by Brisbane Auto Recycling on a casual contract basis to collect motor vehicles from customers using the PCBU’s tilt tray truck.

In May 2019, he was strapping a load of tyres on the tray in the businesses’ Rocklea yard, while two forklifts operated several metres away. One of the forklifts, driven by an unlicensed worker, reversed into him and crushed him against the tilt tray.

Willis was taken to hospital by ambulance and died from his injuries eight days later.

District Court Judge Anthony Rafter heard Hussaini told paramedics that Willis sustained his injuries in a one-metre fall from the tray. Hussaini became aware of the precise mechanism shortly after, however, didn’t advise the Ambulance Service or treating doctors.

Karimi then told Willis’s daughter that Willis had fallen, and later suggested to her that this occurred because Willis failed to properly secure a car to the tray, causing the car to roll and hit him, the Judge heard.

After much wrangling with Karimi over the next few days, the daughter eventually obtained CCTV footage showing the forklift strike Willis and called the police, who notified Workplace Health and Safety Queensland, he heard.

Hussaini subsequently misled investigators as to the identity of the forklift driver, presumably because the actual driver, who was looking forwards as he reversed into Willis, didn’t have a high-risk work licence to operate a forklift.

Brisbane Auto Recycling and the directors were charged in October. The forklift driver was charged with the dangerous operation of a motor vehicle causing death.

Judge Rafter found the business didn’t have any safety systems or a traffic management plan for its worksite, despite several forklifts operating “constantly in close proximity to workers and members of the public,” and didn’t take proper steps to confirm the licence status or competency of its forklift drivers.

“The defendants knew of the potential consequences of the risk, which were catastrophic. Steps to lessen, minimise or remove the risk posed by mobile plant were available. Those steps were neither complex nor overly burdensome,” he said.

“By their pleas of guilty, Mr Hussaini and Mr Karimi accept that they knew of the risk to the safety of their workers, but consciously disregarded that risk.”

The Judge stressed that the directors’ offending wasn’t momentary or isolated.

By January 2018, their business, established in 2016, had “grown in size, in terms of employees, turnover and the presence of mobile plant, to the point where the conduct of Mr Hussaini and Mr Karimi, in not taking steps to ensure the risk posed to workers was controlled, amounted to recklessness,” he said.

The directors initially attempted to deflect responsibility for the incident, and Karimi’s behaviour towards Willis’s daughter was “disgraceful,” given it occurred at a time when she would have been “incredibly distressed,” he added.

In sentencing the directors, Judge Rafter considered that they were both refugees who were exposed to extreme violence in Afghanistan before fleeing that country and faced the prospect of deportation if they served jail time.

In fining the PCBU $3 million, he said a lesser penalty “would not adequately punish or serve to adequately deter others.”

R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 (11 June 2020)

Join our FREE webinar on new workplace manslaughter laws and how to prepare for 1 July 2020

The Victorian Parliament recently passed new workplace manslaughter laws that will impose fines and jail terms for employers responsible for negligently causing death.

In order to guide business on how to best prepare for these new laws, the Victorian Chamber has developed a FREE two-part webinar series (Friday 19 June and Tuesday 23 June), aimed at explaining them and how to best prepare your business to ensure you fully comply.

Our Senior Health, Safety and Wellbeing Consultant, Ian Wallis, will firstly discuss the laws and their key components and then provide advice on how to ensure workplaces can avoid workplace fatalities and serious injuries.

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