Guilfoyle v Wild Breads Pty Ltd

Case [2021] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58

PARTIES:

AARON JOHN GUILFOYLE

(appellant)

v

WILD BREADS PTY LTD

(respondent)

FILE NO:

2742/2020

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 January 2021

JUDGE:

Reid DCJ

ORDER:

Appeal allowed.

1. Impose a fine of $60 000 on the Respondent Wild Breads Pty Ltd in lieu of the fine of $25 000 imposed by the Magistrate.

CATCHWORDS:

APPEAL FROM MAGISTRATE – BREACH OF HEALTH AND SAFETY DUTY – s. 222 Justices Act 1886 – where the respondent breached a health and safety duty pursuant to s. 19 of the Work Health and Safety Act and the failure exposed an individual to a risk of death or serious injury – where the Magistrate imposed a fine significantly lower than submitted by either party – whether the Magistrate misunderstood the basis of the respondent’s liability – whether the sentence imposed was manifestly inadequate.

LEGISLATION:

Work Health and Safety Act 2011 (Qld) ss 19, 25, 32 and 33

Penalties and Sentences Act 1992 (Qld) s 9

CASES:

Markarian v The Queen (2005) 228 CLR 957

Reynolds v Orora Packaging Australia Pty Ltd (2019) QDC 31

Gartner v Brennan [2016] WASC 89

Williamson v VH and MG Import Pty Ltd [2017] QDC 56

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

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Richardson v Ollis Constructions Pty Ltd [2019] QMC 5

Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17

Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150

Bulga Underground Operators v Nash [2016] NSWCCA 37

R v KR; R v JL; R v RJB [2011] NSWCCA 10
COUNSEL:

B J Power for the appellant

A S Mellick for the respondent
SOLICITORS:

Office of the Work Health and Safety Prosecutor for the appellant

BT Lawyers for the respondent

Introduction

  1. This is an appeal from a sentence imposed by Magistrate Shearer on the respondent company for an offence under the Work Health and Safety Act (the Act). The respondent was fined $25,000. The offence was that between 4 October and 20 November 2018 the respondent exposed a worker to a risk of death or serious injury contrary to s. 32 of the Act by failing to comply with its duty pursuant to s. 19 of the Act to ensure, so far as reasonably practicable, the health and safety of its workers. The maximum penalty for the offence was a fine of $1.5 million.

  2. The prosecutor appeals on the following grounds:

    (i)the Magistrate misdirected himself by taking into account an irrelevant sentencing consideration, that is, the actions of the forklift driver when imposing the sentence;

    (ii)the Magistrate erred in his interpretation and application of s. 19 of the Act; and

    (iii)the sentence imposed was manifestly inadequate.

  3. The sentence imposed below was unusual in that counsel for the respondent company, which had pleaded guilty to the offence,…

Continue reading Guilfoyle v Wild Breads Pty Ltd

Sign in free to access the full text

Details
AGLC
Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58
Case
[2021] QDC 58
Decision Date

CaseChat Overview and Summary

In the case of Guilfoyle v Wild Breads Pty Ltd, the appellant, Guilfoyle, appealed against the decision of the Magistrate who found Wild Breads Pty Ltd in breach of a health and safety duty under section 19 of the Work Health and Safety Act 2011. The breach occurred at the P2 factory in Darra and exposed an individual to a risk of death or serious injury. The issue before the court was whether the Magistrate misunderstood the basis of the respondent's liability and whether the sentence imposed was manifestly inadequate.

The court held that the Magistrate misunderstood the basis of the respondent's liability. The court found that the respondent breached an ongoing health and safety duty to not expose workers to a risk of injury. The hazard created by the breach was the risk of physical injury resulting from the uncontrolled interaction of pedestrians and forklifts. The risk materialised on 20 November 2018, but the breach was ongoing from 4 October 2018 to 20 November 2018. The court also found that the Magistrate imposed a fine significantly lower than submitted by either party, which was manifestly inadequate.

The court allowed the appeal and imposed a fine of $60,000 on Wild Breads Pty Ltd in lieu of the fine of $25,000 imposed by the Magistrate. The court held that the fine imposed by the Magistrate was manifestly inadequate and did not reflect the seriousness of the offence. The court also held that the Magistrate misunderstood the basis of the respondent's liability, which was an ongoing breach of duty from 4 October 2018 to 20 November 2018.

Orders

Orders of the court

Appeal allowed.

1. Impose a fine of $60 000 on the Respondent Wild Breads Pty Ltd in lieu of the fine of $25 000 imposed by the Magistrate.

Background

Background to the litigation

It is abundantly clear from the complaint and the attached particulars that:1. the obligation the respondent breached was an ongoing one;2. the duty breached was to not expose workers to a risk of injury;3. the hazard created by the breach was the risk of physical injury resulting from the uncontrolled interaction of pedestrians and forklifts;4. the risk materialised on 20 November 2018; and5. appropriate control measures included physical and visual separation of pedestrians and forklifts.Statement of facts The statement of facts tendered below was a document that could certainly have been more carefully prepared. Counsel for the respondent, in written submissions before me, submits that it effectively misled the Magistrate by inappropriately concentrating his mind on the events of 20 November solely and had the effect of elevating the negligence of the driver of the forklift which struck the injured worker to become the central issue on the hearing. I do not accept that a proper reading of the schedule of facts, read alongside the complaint including the particulars and, more especially, the transcript below, supports that view. The statement of facts identifies the offence as follows:“Wild Breads Pty Ltd is charged with one category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011 (“the Act”), that on 20 November 2018, at Darra, it held a health and safety duty, pursuant to s 19(1) of the Act, it failed to comply with that duty, and the failure exposed an individual to a risk of death or serious injury.” There are difficulties with that identification of the offence. As I have said, the complaint itself alleges that between 4 October 2018 and 20 November 2018 Wild Breads held a health and safety duty pursuant to s. 19(1) of the Act, failed to comply with the said duty, and the failure exposed an individual to a risk of death or serious injury. The complaint is of an ongoing breach of duty from 4 October to 20 November and not of a breach only on 20 November. The statement of facts also sets out the following:“Summary(4)On 20 November 2018, at the Wild Breads Pty Ltd “P2” bread factory in Darra, a worker was crushed between a stationery forklift and a forklift being reversed by another worker, Naresh Kumar. The worker received soft tissue injuries. Kumar was not looking in the direction of travel while reversing the forklift.” There are difficulties, too, with that summary, which fails to summarise the ongoing nature of the breach or identify its being constituted by a failure to ensure separation of forklifts and workers. Nevertheless, the ongoing nature of the breach was obvious to the Magistrate. The schedule of facts sets out, under the subheading “Background”, the following:“(9)On 4 October 2018, the Workplace Health and Safety Committee of the P2 factory identified forklifts in the packing room as a significant risk. Line marking and a ‘toolbox talk’ were confirmed as actions required to be taken; however these measures were not implemented by Wild Breads at the P2 Factory.(10)On 7 November 2018, a worker was struck by a forklift in the packing room of the P2 factory without suffering significant injuries. The implementation of controls was again considered by Wild Breads, including line marking and pedestrian separation barriers; however, these were not implemented prior to the incident the subject of the complaint.”

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.