Director sentenced for recklessly ignoring WHS complaint

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Another company officer has been handed a prison sentence in Queensland, this time for recklessly disregarding a worker’s safety concerns in the minutes before a second worker slipped and sustained serious impalement injuries.

Illawarra Enterprises (Qld) Pty Ltd director Michael Peter Walsh was sentenced to four months’ jail, wholly suspended for 12 months, in the District Court.

Illawarra Enterprises was convicted and fined $300,000 over the incident.

The duty holders were sentenced just days after a Queensland business owner was ordered to serve 18 months of actual jail time – a record under Australia’s workplace safety laws – for the industrial manslaughter of a friend who was helping him unload a truck (see related article).

Illawarra Enterprises and Walsh were charged with breaching section 31 (“Reckless conduct–category 1”) of the State Work Health and Safety Act 2011, after the worker sustained his injuries at a Val Eco Homes Pty Ltd housing construction site in Balmoral in February 2018.

Walsh and his company both contested the charges, but were found guilty.

Judge Paul Smith heard Illawarra Enterprises was engaged by Val Eco to lay blocks at the site, which featured a very steep incline with several excavations in and around the block-laying area.

The excavations included a 1.9-metre-deep unbarricaded trench that contained an uncapped vertical reo starter bar, and ran alongside a narrow earthen pathway.

The worker was travelling up the path when part of it gave way and he fell into the trench and was impaled on the steel bar, severely injuring his groin and stomach.

He was transported to hospital with the bar in-situ. It was surgically removed.

Workplace Health and Safety Queensland issued an alert after the incident, highlighting safety control measures for tasks performed in or near excavations and trenches.

A WHSQ investigation subsequently found Walsh had directed his workers to retrieve scaffolding and trestles from the lower area of the site and carry them up the earthen path.

The regulator found that several minutes before the worker was impaled, his co-worker slipped on the path and nearly fell in the trench, and reported the matter to Walsh, warning the task was dangerous.

Walsh disregarded these concerns, and took no action, it found.

Judge Smith found that without reasonable excuse, Walsh and his company both engaged in conduct that exposed individuals to the risk of death or serious injury, and were reckless as to the risk.

He noted that while the worker did not have permanent injuries, he suffered significant pain in horrific circumstances when he fell.

Walsh was remorseful and had written a letter of apology to the worker, but the letter was yet to be sent to the man, he heard.

Val Eco was also charged over the incident, and convicted and fined $110,000 in October 2019 for a category-2 breach of the WHS Act (see related article).

In that case, the Brisbane Magistrates Court found that given the narrowness of the earthen path, Val Eco, as the site’s principal contractor, should have established an alternative method for accessing the site, and fenced off the trench.

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