Guilfoyle v AP - [2021] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Guilfoyle v AP [2021] QMC 6

PARTIES:

Aaron John GUILFOYLE (Work Health Safety Prosecutor)

(Complainant)

v

AP

(Defendant)

FILE NO/S:

MAG-00021741/21(3)

DIVISION:

Magistrates Courts

PROCEEDING:

Sentencing Hearing

ORIGINATING COURT:

Beenleigh Magistrates Court

DELIVERED ON:

17 September 2021

DELIVERED AT:

Beenleigh Magistrates Court

HEARING DATE:

17 September 2021

MAGISTRATE:

T. E. Mossop

ORDER:

Sentence Order, with Reasons

CATCHWORDS:

Work Health & Safety prosecution – Breach of Duty Category 2 offence – using a forklift with platform not securely fitted per Australian Standards – friend helping electrical contractor (defendant) replace an air-conditioning unit – injury – platform fell from a height – Sentencing factors for first time offender

Work Health & Safety Act (Qld) 2011, ss3(1)(a)&(2), 7, 16, 17, 18, 19(1)&(3), 32

Wong v R (2001) 207 CLR 584

Markarian v R (2005) 228 CLR 357

Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20

Comcare v Commonwealth of Australia [2007] FCR 207

Workcover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284

Safe Work NSW v Chemstore Group Pty Ltd [2019] NSWDC 598

SOLICITORS:

Complainant represented by J M Henderson, Office of the Work Health and Safety Prosecutor

Defendant Represented by Liam Dollar, Counsel instructed by Raniga Lawyers

Ignorance, Injury, and Investigation

What seemed like a simple task of an air-conditioning mechanic replacing an air-con’ unit at a business premises [for a modest financial reward, with some assistance by his friend, using a forklift with attached work platform provided by another] became an incident involving ignorance, injury and investigation. If only the “i’s” had been as dotted as the last five substantive words at the end of the previous sentence, figuratively speaking, this decision would not exist.

The unsecured work platform placed on forklift arms (or times as they are properly named) raised to a height of some metres to enable the air-con’ replacement task to be carried out, ended up falling some 4 metres. Working from it at that time was a friend of the Defendant who was helping the Defendant that day. That friend was a worker in accordance with section 7 of the Work Health and Safety Act 2011 (WHS Act). He sustained injury, namely lacerations and a dislocated shoulder, which required medical attention.

The Defendant, AP (identified by his initials for the purposes of providing this precedent case to assist in any future prosecutions of a like nature), was a self-employed air-con’ mechanic. He failed to comply with his health and safety duty set by section 19 of the WHS Act, which is an offence under section 32 of the same Act. As a person conducting a business or undertaking, AP failed to ensure, so far as reasonably practicable, the health and safety of a worker engaged by him while the worker was at work. And this failure exposed that worker to a risk of death or serious injury.

The incident occurred on 19 December 2019. The first court mention was 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QMC 6
Decision Date: 17 September 2021

CaseChat Overview and Summary

The case of Guilfoyle v AP involved the prosecution of an individual, AP, under the Work Health & Safety Act. AP, an electrical contractor, was accused of breaching his duty of care by using a forklift with a platform not securely fitted in accordance with Australian Standards. The incident occurred when AP, with the assistance of a friend, was replacing an air-conditioning unit. The platform fell from a significant height, causing injury to the friend. The court was required to determine whether AP had indeed breached his duty and, if so, what the appropriate sentence should be, considering factors such as his status as a first-time offender.

The primary legal issue before the court was whether AP's actions constituted a breach of duty under the Work Health & Safety Act. This involved examining whether the forklift's platform was appropriately secured in line with the relevant Australian Standards and whether AP had exercised reasonable care in the circumstances. Additionally, the court needed to consider the factors that should inform the sentencing of AP, given his lack of prior convictions.

The court found that AP had indeed breached his duty of care by not ensuring the forklift's platform was securely fitted. The court considered the Australian Standards and concluded that AP's actions fell short of the required safety measures. Given that this was AP's first offence and there were no previous convictions, the court took into account mitigating factors such as his otherwise good character and the fact that the incident occurred in the course of a genuine effort to assist a friend. The court balanced these considerations with the need to uphold safety standards and deter similar breaches in the future. The court ultimately decided on an appropriate sentence, taking into account the breach and the mitigating factors.

The court ordered a sentence that included a fine and a good behaviour bond. The reasons for the sentence were based on the breach of duty, the nature of the incident, and the mitigating factors presented. The court emphasised the importance of adhering to safety standards in the workplace to protect individuals and maintain public safety.

Orders

Orders of the court

Sentence Order, with Reasons

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Guilfoyle v AP [2021] QMC 6
PARTIES:	Aaron John GUILFOYLE (Work Health Safety Prosecutor) (Complainant) v AP (Defendant)
FILE NO/S:	MAG-00021741/21(3)
DIVISION:	Magistrates Courts
PROCEEDING:	Sentencing Hearing
ORIGINATING COURT:	Beenleigh Magistrates Court
DELIVERED ON:	17 September 2021
DELIVERED AT:	Beenleigh Magistrates Court
HEARING DATE:	17 September 2021
MAGISTRATE:	T. E. Mossop
ORDER:	Sentence Order, with Reasons
CATCHWORDS:	Work Health & Safety prosecution – Breach of Duty Category 2 offence – using a forklift with platform not securely fitted per Australian Standards – friend helping electrical contractor (defendant) replace an air-conditioning unit – injury – platform fell from a height – Sentencing factors for first time offender Work Health & Safety Act (Qld) 2011, ss3(1)(a)&(2), 7, 16, 17, 18, 19(1)&(3), 32 Wong v R (2001) 207 CLR 584 Markarian v R (2005) 228 CLR 357 Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20 Comcare v Commonwealth of Australia [2007] FCR 207 Workcover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 Safe Work NSW v Chemstore Group Pty Ltd [2019] NSWDC 598
SOLICITORS:	Complainant represented by J M Henderson, Office of the Work Health and Safety Prosecutor Defendant Represented by Liam Dollar, Counsel instructed by Raniga Lawyers