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January 2020

Business trustee liable for fatal incident despite not being present

Business trustee liable for fatal incident despite not being present

WorkSafe Victoria v Glenn Fraser (2019)

Facts

Glenn Fraser was the trustee for Friosal Enterprises, a duck breeding business. Friosal Enterprises engaged a sole trader who then engaged an assistant to work with the trustee installing winches, at a height of 5 metres, to transport feed and water to the duck livestock in a large housing shed.

The workers were cooperating to install the winches, then decided to use a front end loader to complete the task. The sole trader operated the front end loader controls and the assistant installed the winch from inside the bucket.

The sole trader leaned into the cabin of the front end loader and raised the bucket – with the assistant inside – to the roof.

When the bucket was at the height of the roof, the assistant fell out of the bucket onto the compacted sandstone floor below. The assistant died at the scene.

Judgment

The Melbourne County Court fined the trustee $75,000 after determining that the trustee breached sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (OHS Act).

The Court found:

  • the trustee failed to provide appropriate measures to ensure a safe system of work for the winch installation task;
  • the trustee had not installed any elevated work platforms that could be used by the workers; and
  • there were no health and safety policies or procedures in place, nor were there any documented procedures to instruct workers on how to complete the task of installing electric winches safely.

The trustee was liable despite not being physically present at the workplace on the date of the fatal incident.

The Court also found the sole trader to be in breach of the OHS Act and imposed a fine of $75,000.

Lessons

The Melbourne County Court’s decision is a reminder that companies that do not provide adequate safe systems of work or fail to provide adequate safety measures may face significant fines for their non-compliance.

In this case, the fact that the trustee was not present at the workplace at the time of the incident did not mitigate their liability.

Managers and supervisors should ensure they are present at workplaces to discharge their duty of care. If it is impossible for them to be present, they must ensure that adequate safe work systems are being implemented during their absence.

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