Individual worker prosecuted over workplace fatality

By Andrew Cardell-Ree.

Key Points:
Workers sufficiently involved in a creating a risk to safety are not beyond prosecution, but operators are still primarily responsible.

On 27 July 2006, a worker at a quarry in far north Queensland was struck by a Caterpillar loader and died. In the aftermath of the ensuing investigation, the site senior executive and a worker were charged with breaches of the Mining and Quarrying Safety and Health Act 1999 (QMSHA). Each pleaded guilty to the charge.

When the matter came before the Industrial Magistrates Court in Mareeba, the worker pleaded guilty to failing to discharge his obligations under the QMSHA and was fined $1,000, with no conviction recorded.

The site senior executive for the quarry also pleaded guilty to failing to discharge his obligations under the QMSHA, by failing to put in place a traffic management system for the haul road. He was fined $3,000, with no conviction recorded, and ordered to pay $4,000 in legal costs.

Implications

Although few details of the incident are available publicly or in the transcript of the decision, the decision is consistent with a number of points:

• there is a growing emphasis on individual responsibility of all workers - even those not involved in the management of a company or safety, quite apart from any managerial or safety responsibilities;
• notwithstanding that interest, mine operators (like employers) continue to bear primary responsibility for safety in a workplace or arising from their operations, through their ongoing and non-delegable duty to protect against risk;
• individuals who have a direct role or involvement in any safety incident might anticipate they will come to the attention of the inspectorate; and
• any culpability of workers over direct involvement in a safety incident is unlikely to detract from the responsibility of site senior executives or individuals responsible for managing the affairs of the company or safety obligations generally.

A risk management regime based on ongoing due diligence is essential to control these risks.

For further information, please contact Hedy Cray and Andrew Cardell-Ree.