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The dangers of failing to keep WHS systems up to date

In a recent decision involving a forklift fatality, the District Court of New South Wales has cautioned growing businesses of the need to ensure that their WHS systems are adequate for the size of the business and the type of work being performed.

In the matter of SafeWork NSW v MON Natural Foods Pty Ltd [2023] NSWDC 55, a licensed electrician suffered fatal head injuries whilst working at an elevated height at a processing facility in regional NSW. The electrician had been lifted in a work box attached to the forklift, which was being operated by an apprentice electrician who had not used the forklift before, and had accidentally knocked one of the joysticks.  

The employer pleaded guilty to an offence under section 32 of the Work Health and Safety Act 2011 (NSW), being that it failed to comply with its primary duty to ensure the safety of its workers so far as reasonably practicable, and exposed the electrician to a risk of serious injury or death.

In determining the sentence to be imposed, the District Court found that the offence was a serious one considering that:

  • the employer had failed to take steps to ensure that a backguard was put in place to minimise the obvious risk of injury;
  • the employer also failed to restore the rear frame of the work box (which was already on site), which could have eliminated the risk of injury;
  • these risks were exacerbated by having a worker with very limited experience controlling the work box while supervised only by the electrician who was in the work box;
  • there were control measures which were readily available to the employer but were not taken (for example, conducting risk assessments);
  • as the employer’s business had grown, it failed to maintain its system of ensuring that workers regularly had conversations about safety issues, and it failed to devise and implement a more appropriate and formal method of communicating safety matters to all workers; and
  • whilst the incident had served as a “wake-up call” for the employer which triggered an appropriately significant response, including:
    • retaining experts in safety compliance and using that assistance to develop and implement new systems to ensure compliance; and
    • seeking and continuing to utilise holistic assistance and investigate ways in which they could ensure the health and safety of their workers,

     the deficiencies in the employer’s WHS system were many and varied and unfortunately, the      consequences were catastrophic.

The District Court also considered that, even though the employer’s prospects for rehabilitation were good, there was still a need for specific deterrence.

The employer was therefore convicted and fined $600,000.00 (reduced by 25% to reflect the guilty plea).

Lessons for employers

This decision is an unfortunate reminder for persons conducting a business or undertaking of the potential consequences of failing to ensure that:

  • appropriate measures are undertaken to mitigate obvious safety risks; and
  • those measures are reviewed and updated as the business or undertaking grows to ensure they remain adequate and appropriate.

Proactive measures must be taken to ensure that any risk to worker health and safety is eliminated as far as reasonably practicable.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.


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