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Many of Australia’s states and territories have passed legislation amending their respective work health and safety acts to include the offence of industrial manslaughter (see related article here). In a recent common law development, Judge Cash QC of the Queensland District Court has sent a clear message to Queensland business owners that the responsibility to create and maintain a safe work environment is paramount.
R v Jeffrey Owen: in brief
In July 2019, Mr Ormes was tragically killed after a generator fell from the tines of a forklift and landed on him while he was carrying out work-related duties for his long-standing friend and Gympie business owner, Mr Owen. Mr Ormes was neither an employee nor contractor to the business but rather, volunteered his time. On 25 March 2022, a jury convicted Mr Owen of industrial manslaughter, an offence punishable by up to 20 years imprisonment in Queensland.
Judge Cash QC remarked that Mr Owen’s negligence caused the death of another person, constituting the essential ingredient of the offence of industrial manslaughter. Further, the jury accepted the prosecution’s argument that Mr Ormes was a ‘worker’ under the Work Health and Safety Act 2011 (Qld) who died in the course of carrying out work for Mr Owen, notwithstanding that Mr Ormes was not employed by, or otherwise engaged as a contractor to, Mr Owen.
Those who have a health and safety duty should be aware that even if the elements of industrial manslaughter are not established, the lesser category 1 offence of ‘reckless conduct’ still carries a penalty of imprisonment. That penalty has been imposed by Courts including recently against the director of Illawarra Enterprises (Qld) Pty Ltd, Michael Walsh, for ignoring a worker’s safety concerns prior to injury.
Sentencing remarks
In sentencing Mr Owen to 5 years imprisonment, to be suspended after 18 months, Judge Cash QC had regard to the following factors which his Honour considered amounted to ‘gross negligence’:
- Mr Owen had no safety plan in place;
- the forklift that was used by Mr Owen was inadequate for the task;
- Mr Owen was not licensed to operate the forklift; and
- Mr Owen continued to operate the forklift even after the risk of the generator becoming loose was apparent.
While Judge Cash QC did have regard to Mr Owen’s remorse, personal relationship with Mr Ormes, standing in the Gympie community and good character, his Honour placed greater emphasis on his hope that Mr Owen’s sentence would deter other business owners from non-compliance with safety obligations.
Trends and implications
Judge Cash QC’s sentence signifies the developing willingness of Australian Courts to impose heftier penalties for negligence in the workplace resulting in death, not just against the companies themselves, but against directors too. The decision follows two other industrial manslaughter prosecutions with courts in each instance increasing imprisonment periods:
- In June 2020, Brisbane Auto Recycling Pty Ltd was found to have committed industrial manslaughter and ordered to pay a fine in the sum of $3 million. The directors were also sentenced to 10 months imprisonment on the basis of reckless conduct (category 1 offence).
- In May 2021, Western Australia recorded its first conviction for industrial manslaughter against Mark Withers, director of MT Sheds (WA) Pty Ltd, who was sentenced to 2 years and 2 months imprisonment.
More recently, in March 2022, the Northern Territory’s WorkSafe launched its first industrial manslaughter prosecution against Kalidonis NT Pty Ltd. The company faces a maximum fine of $10.3 million, and the company’ sole director a maximum sentence of 5 years imprisonment. Given the enhanced sentencing appetite of Courts, the case will be followed closely as it unfolds.
Read other items in the Australian Employment Brief - May 2022
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