Individual jailed for WHS Industrial Manslaughter in Queensland
History was made on Friday, 25 March 2022 when Gympie business owner Jeffrey Owen was found guilty of an industrial manslaughter offence under Queensland’s work health and safety laws, and sentenced to a five year jail term (with 18 months to be served until the remaining period is suspended).
This is the first successful prosecution of an individual since this offence was brought onto Queensland’s statute books in 2017. The previous, and only other, time this offence was successfully used in a Queensland prosecution was against a company, Brisbane Auto Recyclers, in 2020. In that matter, the company’s directors separately pleaded to charges of recklessness – see our article about that prosecution here
The prosecution against Mr Owen arose in circumstances where a volunteer worker suffered fatal injuries after a generator fell from the tines of a forklift and struck him. Mr Owen was charged as an individual conducting his business, Owen’s Electric Motor Rewinds. He was not charged as a director or other form of ‘officer’.
The District Court in Gympie heard evidence that at the time of this incident on 3 July 2019:
- Mr Owen was driving the forklift, despite not holding a licence;
- The generator was too heavy for the forklift – another worker was observed standing on the back of the forklift as a counterweight; and
- There was a lack of safety systems, with improvements made within the business after the incident.
The prosecution submitted that while it was not expected that a small business would have sophisticated safety systems, there was an absence of any such systems in this instance.
After nearly four days of hearing evidence, the jury took only four hours to find Mr Owens guilty of the single charge of industrial manslaughter brought against him.
As such, the jury was satisfied that the volunteer was a ‘worker’ within Mr Owen’s business, who had died in the course of carrying out work for that business, and that Mr Owen’s ‘conduct’ (which includes both acts and omissions) in causing the death was negligent.
The maximum sentence that could have been imposed was twenty years imprisonment. The five year term imposed on Mr Owen, with the conviction being recorded, is therefore significant.
It remains to be seen whether an appeal will be brought against this conviction.
However, regardless of any such appeal or its outcome, there are some important takeaway messages from this prosecution:
- Any suggestion that individuals are not at risk of prosecution following a serious work health and safety incident has been well and truly kyboshed. The duties owed under work health and safety laws cannot be taken lightly. The ‘carrot’ for compliance is keeping a safe and healthy workforce. The biggest ‘stick’ for failing to comply is the potential for serving time in prison.
- No successful prosecutions for industrial manslaughter have yet been brought against company directors. This is not to say that this cannot or will not happen. However, it is notable that the charges that have been brought to date, including where successful charges have been brought for ‘recklessness’ offences, have involved individuals who were ‘hands on’ in the business, who were seen to have knowledge of the relevant risks, and to have failed to take appropriate action. As such, awareness of what your duties are, how they must be discharged, and being able to evidence you have done this, is critical.
- Make sure you have work health and safety systems that are fit for purpose, and that they actually work. The two successful prosecutions for industrial manslaughter in Queensland have been brought against small businesses that failed to put in place systems for the work being performed. Claiming a lack of resources won’t spare you from a successful prosecution.
- Be aware that volunteers are workers, as much as your paid employees, and make sure your systems work to protect them. In fact, work health and safety obligations extend to anyone who may be impacted by a business or undertaking, including members of the public. There is a small technicality here in that Queensland’s industrial manslaughter laws only apply to the death of a ‘worker’, but other offences apply even if this doesn’t.
- If you have an incident, get good advice immediately. Even better, get advice now about what you need to do to meet your obligations for compliance with work health and safety laws so that you may never need to make a call for legal help in the aftermath of an incident. The stakes have been raised, you need to make sure your standards meet the bar.
For more information about this case, or for strategic advice about navigating WHS issues, contact our expert team here.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.