By Michael Selinger
A company has been convicted under industrial manslaughter laws for the first time in Australia with a fine of $3 million imposed.
Brisbane Auto Recycling Pty Ltd (Company) operated an auto wrecking business at 167 Marshall Road Rocklea (workplace). The business involved the purchase of used motor vehicles for resale, recycling and parts. The Company had two directors, Mr Asadulla Hussaini and Mr Mohammad Ali Jan Karimi, who both supervised work at the workplace.
On 17 May 2019, a worker, Mr Barry James Willis, was struck by a forklift and died eight days later from the injuries he sustained. Mr Willis was engaged on a casual contract to collect motor vehicles from customers using a tilt tray truck and deliver them to the workplace.
On the day of the incident, Mr Willis was strapping down some tyres on the tilt tray at the workplace. There were two forklifts operating several metres away, when one being driven by Mr Mohammad Yaqubi reversed and struck Mr Willis. Mr Willis was crushed against the tilt tray and when Mr Yaqubi drove forward, Mr Willis fell to the ground.
Mr Hussaini called the ambulance and wrongly informed the operator that Mr Willis had fallen from the back of the truck. A couple of hours later, Mr Hussaini became aware of how the incident actually had occurred, but did not advise the treating doctors or the Ambulance Service about this fact. Mr Karimi, the other director, told Mr Willis’ daughter that Mr Willis had fallen from the truck, proposing that Mr Willis failed to properly secure a car which rolled back on to him and suggesting that their request for access to the CCTV footage might not be required. The daughter eventually obtained the CCTV footage after a long wrangle with Mr Karimi over a few days and called the police, who then notified Workplace Health and Safety Queensland (WHSQ). Mr Hussaini also then misled the WHSQ investigators by identifying the forklift driver as someone else other than Mr Yaqubi.
The Company was charged with industrial manslaughter contrary to s 34C of the Work Health and Safety Act 2011 (Qld) (Act). Mr Hussaini and Mr Karimi were also charged with the category 1 offence contrary to s 31 of the Act for failing to comply with their duty, as an officer of the Company, under s 27 to ensure that the Company complied with its work health and safety duty under s 19(1).
The Company and the two directors pleaded guilty to the charges.
The District Court of Queensland found that the gravity of the offence and the moral culpability of each defendant was high, taking into account that:
- there were no safety systems in place;
- the defendants knew of the potential consequences of the risk posed by mobile plant operating near pedestrians;
- steps to lessen, minimise or remove the risk posed by mobile plant was available – which were neither complex nor overly burdensome;
- there were no real attempts to assess or control the risks posed by mobile plant;
- the offending conduct of the directors was not a momentary or isolated breach. By contrast, the business 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;
- the lengthy period of time over which many workers were placed at risk was relevant to an assessment of the criminality of the Company; and
- the imputed conduct of Mr Hussaini and Mr Karimi led to the death of Mr Willis, as did the conduct of the forklift driver, Mr Yaqubi which flowed from the prolonged failures.
The Court concluded that the reckless conduct of the Company caused the death of Mr Willis because it failed to control the interaction of mobile plant and workers at the workplace, to effectively separate pedestrian workers and mobile plant, and to effectively supervise operators of moving plant and workers. The Court held that Mr Hussaini and Mr Karimi were reckless as to the risk to workers and members of the public who had access to the workplace and failed to ensure that the Company complied with its duty.
The Court noted that Mr Hussaini and Mr Karimi engaged in conduct that was designed to deflect responsibility for the incident by deliberately naming someone else as the forklift driver and proposing a different version of the incident that placed responsibility for it on Mr Willis.
Nevertheless, Court also considered a number of mitigating factors, among other things:
- the directors are both relatively young men, aged 25 and 23, who were exposed to extreme violence during their upbringing in Afghanistan;
- the directors are both the sole source of financial support for their families, where their wives and children are living in Afghanistan; and
- the prospect of deportation for both Mr Hussaini and Mr Karimi, who are currently Australian permanent residents.
Nevertheless the Court considered the gravity of offence high and the Company was convicted and fined $3 million out of a potential maximum of $10 million. Mr Hussaini and Mr Karimi were both convicted and sentenced to 10 months imprisonment but, having regard to the significant mitigating factors, the whole of the term of imprisonment was suspended for an operational period of 20 months.
This is a significant industrial manslaughter conviction as it sets an expectation for penalty levels under these new laws. Currently, a separate offence for industrial manslaughter exists in a number of jurisdictions including the ACT, Northern Territory, Queensland and Victoria. New South Wales has determined not to implement a separate offence at this stage. This case is an example of how an industrial manslaughter offence may be treated by the courts.