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Recent VSC Decision – Industrial Manslaughter

Summary of Findings and Penalties

A Melbourne stonemasonry business has been penalised $1.3 million while its sole director has avoided jail and fines in the first completed prosecution in the Supreme Court of Victoria (VSC), under Victorian industrial manslaughter laws, which were introduced in 2020.

In this decision, the trial judge Justice Michael Croucher (Croucher J) recounted the tragic events in 2021 that led to a 25-year-old sub-contractor being crushed to death when a forklift operated by the owner of LH Holding overturned.

Croucher J observed that the industrial manslaughter offence involved negligent conduct that breached duties under the Occupational Health and Safety Act (Vic) 2004 (VIC OHS Act) and amounted to “a great falling short of the standard of care“.

In the circumstances of the case, Croucher J emphasised that the gravity of the offending needed to be assessed in light of three features of the evidence, including:

  1. the negligent conduct, itself, which occurred over a matter of seconds;
  2. the director indicated that he attempted to prevent the tragedy occurring when he told the sub-contractor to move before the forklift tipped; and
  3. the director said he had believed that the sub-contractor had in fact moved when he was asked to do so.

Even though the director told the sub-contractor to move and that he believed he had moved when he began to reverse the forklift, Croucher J found that it was “still incumbent” on the director and thereby on the company to immediately stop operating the forklift to ensure the sub-contractor was out of harm’s way. Croucher J went as far as to say that “Had those steps been taken [the sub-contractor] would not have been killed.”

Penalties Awarded

In this decision, Croucher J listed the relevant mitigating factors for the director and the company, which can be summarised as follows:

  1. the director
    • participated in interviews with WorkSafe investigators and made various admissions;
    • provided all paperwork and evidentiary materials requested of him and the company;
    • provided substantial financial assistance to the family after the sub-contractor’s death, including paying for the funeral expenses ($16,900);
    • was remorseful for his and his company’s offending;
    • had been significantly impacted by the incident, to the point his mental health was at risk;
  2. the director and the company
    • plead guilty to all charges which removed the need for a lengthy and complex trial; and
    • did not have any prior convictions.

Croucher J noted further that the director and LH Holding had agreed to pay the sub-contractor’s mother $120,000 compensation. Ultimately, he said, a 200-hour community correction order and an order to complete a forklift operation course was the appropriate sentence rather than a fine and incarceration.

Justice Croucher said he had decided to impose a fine that “well exceeds” its assets, but “because I think it is the right thing to do anyway, I would urge those who have responsibility for collecting fines to ensure that the $120,000 ordered by way of compensation against the company is paid to the sub-contractor’s mother first.

Even though the above relates to a Victoria decision, it is important to note that the penalties under the VIC OHS Act are similar to the penalties introduced under the Fair Work Legislation Amendment (Closing Loopholes) Act (Cth) 2023, which amends the Work Health and Safety Act (WA) 2011, which include penalties of $18 million for a body corporate, and 25 years imprisonment for an individual.

See Also:

  • The King v Laith Hanna & LH Holding Management Pty Ltd [2024] VSC 90
  • Victorian court hands down first industrial manslaughter fine” dated February 20 2024, available at: Industrial Manslaughter Fine

Written By Michael Franzone – Associate, Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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