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Perspective

Employee fault will not absolve the employer’s liability

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A young worker was fatally caught by an unguarded nip point between the bottom of the conveyor and a large metal roller with a knife-like edge. MCG Quarries Pty Ltd, William McDonald (Executive Officer), Tony Addinsall (Site Senior Executive) and Edward Coleman (Site Senior Executive) were charged with breaching the Mining and Quarrying Safety and Health Act 1999 (QLD) and Mining and Quarrying Safety and Health Regulation 2001 (QLD):

  • Failing to ensure engineering controls such as guards were on the conveyor system;
  • Lack of proper induction, training or supervision of the worker;
  • Failure to supervise the plant to ensure it was not operated in a way that created an unacceptable level of risk;
  • Lack of hazard warnings near the plant; and
  • No established written procedure or standard work instruction for carrying out maintenance on the conveyor.

A previous appeal failed on the ground that the charges were unintelligible and did not disclose an offence.

The Brisbane Magistrates Court imposed a fine of $400,000 on MCG and Mr Addinsall was fined $35,000. Mr McDonald received a sentence of 18 months’ imprisonment,  with a six-month non-parole period. Mr McDonald has tried to appeal this sentence alleging an error as the risk could not have been minimised if a guard had been installed.

Mr McDonald attempted to argue that the worker knowingly exposed himself to the risk and that a guard would not have eliminated the risk because the rogue employee could remove it. This was completely dismissed by the Court who noted that “The Act does not require that. To take the appellant’s argument to its logical end would mean that there would be little point in installing any safety measures because a “rogue” employee could, if determined to do so, evade almost any safety scheme. Again, that is not the test required under the Act.” Employers are only required to implement reasonable controls that will manage risks according to their consequences and likelihood.

President Martin engaged in an interesting discussion regarding ‘causation’ as Mr McDonald continuously asserted that the accident was borne out of the worker’s own reckless actions. President Martin noted that reasonably practicability required employers to implement all reasonable controls to protect “the careless, the inattentive, the tired, the clumsy and unskillful, and any workers ready to take risks.” Whether a worker’s actions resulted in an accident is irrelevant to whether the employer has breached the Act, it only serves to mitigate any penalty that may be imposed.

On this basis three charges were upheld against Mr McDonald and he was sentenced to jail for 12 months. He did successfully argue that it was not proven beyond reasonable doubt that MCG failed to properly audit the safety system, as such President Martin ordered that the prison sentence was wholly suspended and no conviction was recorded.

Lessons

  • Reasonable practicability means implementing EVERY reasonable control – it is the only way to protect you from liability
  • You cannot control the actions of rogue employees but you can put controls in place to reduce the likelihood of an accident

Read the case: McDonald v Bell [2020] ICQ 007

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