More serious injuries didn’t warrant higher fine: Court

The severity of an workplace injury is not the sole factor when determining how much an employer should be fined for an OHS breach, the Queensland Industrial Court has ruled in dismissing Workplace Health and Safety Queensland's appeal against a "low" penalty.

Manchester Roofing Pty Ltd was fined $35,000 in the Magistrates Court earlier this year for breaching s28(1) of the State Workplace Health and Safety Act 1995, after a worker fell about 3.1 metres from the roof of a storage shed.

The worker was not provided with fall protection and was told to be careful on the roof because of the wet conditions.

He suffered a fractured skull; bleeding and bruising on the brain; nerve damage; and complete hearing loss in his right ear.

WHSQ appealed against the amount the employer was fined in the Industrial Court before President David Hall, arguing that the fine of $35,000 belonged in a cluster of cases where there was a lower level of grievous bodily harm, including the case Brian Marfleet AND Lindsay Meyers Pty Ltd.

It said the worker's injuries in this case were worse and therefore a higher fine should have been handed down.

President Hall rejected the submission, finding all the cases within that cluster involved grievous bodily harm and in many cases a disability continued into the future.

He accepted that when taking into account the circumstances of aggravation at s24 a Magistrate would not be confined to considering the permanent injury involved and may look at the immediate impact of the mishap on the body of the victim.

"Here, [the worker's] injuries might fairly be characterised as potentially life threatening," President Hall said. "That consideration would be taken into account on the issue of gravity/blame-worthiness even if the injury had not ensued."

WHSQ also argued that the case was similar to Paul Bradley Waltham and Cairns Synergy Electrical Pty Ltd, where the employer's fine was increased from $25,000 to $38,000 on appeal, after it was found that the injured worker's blameworthiness was considered when the fine was set.

President Hall said the Waltham case and the one at hand were not comparable when considering the facts of both cases. The current case fell within the cluster, he maintained.

"The Industrial Magistrate's decision to adopt a sentencing point at or about the midpoint of the cluster seems to me to be entirely unexceptional.

"Absent any error of law or of principle this Court will interfere with a sentencing... only where the fine imposed is manifestly inadequate or manifestly excessive," he said, dismissing the appeal from the no win no fee solicitor.