Industrial Manslaughter laws, conviction and penalty in the June 2020 Queensland matter of Brisbane Auto Recycling Pty Ltd & Asadullah Hussaini, Mohammad Ali Jan Karimi

The following is intended to provide commentary and general information only in relation to this topic as at 15 June 2020. It is not legal advice.  Every effort is made to ensure the content is accurate; but no warranty is made as to the accuracy, currency or completeness of its content at any time.

What happened in this case?

Brisbane Auto Recycling Pty Ltd (BAR) operated a second hand car business including for recycling and parts.  BAR’s directors were Mr Hussaini and Mr Karimi. They supervised the workplace.

On 17 May 20, Mr Barry Willis, a BAR casual employee, was struck and seriously injured by a reversing forklift driven by another employee.  Mr Willis later died of his injuries. The incident was recorded by four CCTV cameras. 

Mr Willis’ job was to collect motor vehicles and deliver them to the worksite.  Mr Willis went out on job and returned to work driving a Hino tilt tray carrying a van.  He got out of the Hino to unload the van. Another employee, Mr Yaqubi, drove a forklift and unloaded the van.  A little later, Mr Willis moved four tyres and started to strap them down.  Mr Willis then moved about the Hino between the passenger side and drivers’ side.  Another forklift driven by another employee drove by. Mr Yaqubi reversed the forklift to allow that one to drive past him, turning the forklift toward the tilt tray where Mr Willis was standing. The forklift driven by Mr Yaqubi struck Mr Willis, crushing him between the back of the forklift and the tilt tray. Mr Yaqubi had reversed the forklift whilst looking forwards, turning to look behind him only at about the point in time at which Mr Willis was struck.

Mr Willis sustained vascular injuries by trauma to the pelvic region caused by the high impact incident. He Willis was taken to hospital.  Mr Willis, a father of four children and who had six grandchildren, died from the injuries sustained eight days later, on 25 May 19.

BAR and the directors were charged and convicted

About one year after the incident, on 3 Apr 20, BAR, Mr Hussaini and Mr Karimi were indicted and charged with:

• BAR: industrial manslaughter per s34C of the Qld Work Health and Safety Act. The prosecution contended the company’s negligent conduct caused Mr Willis’ death.
• Mr Hussaini, Mr Karimi: reckless conduct – category 1 per s31 Qld Work Health and Safety Act. The prosecution contended each director had a health and safety duty to exercise due diligence to ensure the company complied with its duty, and, without reasonable excuse, engaged in conduct that exposed Mr Willis to a risk of death or serious injury or illness, and was reckless as to the risk to an individual of death or serious injury or illness.

The matter was heard in May 2020 and the defendants pleaded guilty. BAR was registered 9 Mar 16.  Mr Hussaini was 25 yo and Mr Karimi, 23 yo.  Each had no prior convictions.

On Thu, 11 Jun 20, the Qld District Court at Qld convicted:

• BAR and fined it $3m (the maximum penalty was a fine of $10 million).
• Mr Hussaini and Mr Karimi and sentenced each to 10 months imprisonment, suspended for 20 months (the maximum penalty for an individual as an officer of a PCBU, was a fine of $600,000 or 5 years imprisonment).

The worker driving the forklift, Mr Yaqubi, did not hold a high risk work licence to operate a forklift.  Mr Yaqubi has been charged with dangerous operation of a motor vehicle causing death.

The investigation

Initially, the company directors gave an inaccurate account to Mr Willis’ family about what happened.  Mr Karimi advised Mr Willis’ daughter at hospital Mr Willis fell from his truck.  The CCTV footage showed Mr Willis was crushed by the forklift.   After viewing the footage, the family called Police.

On 21 May 19, four days after the incident, police notified WHSQ of the incident. Police and WHSQ investigators attended the workplace the same day and the investigation commenced.

The investigation found:

• there were no written safety policies or procedures within the workplace.
• the director advised workers verbally to be safe and to look after themselves.
• the director understood forklift operators are required to be licensed, although they had not seen the workers’ licences and relied on what they were told.
• they did not have a WorkCover policy because they were not aware of the requirement to have one.
• BAR had no safety systems in place. There was no traffic management plan at the worksite to deal with forklifts operating constantly and near workers and members of the public.
• Mr Yaqubi did not hold a high-risk work licence to operate a forklift. BAR Ltd had made no sufficient enquiries to confirm whether he held one.
• Mr Yaqubi was inexperienced, and there was no sufficient assessment of his competency to operate a forklift.

Judges remarks in sentencing

The Judge affirmed the intent of the legislation (“to secure the health and safety of workers and workplaces by protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers at the workplace; that officers of corporations and unincorporated bodies have a duty to exercise due diligence to ensure that the person conducting the business or undertaking meets its work, health and safety obligations”).

The Judge referred to and relied on the Qld sentencing legislation. The prosecution did not allege Mr Hussaini’s and  Mr Karimi’s conduct  caused  Mr Willis’ death. The prosecution accepted the principles in s 9(2)(a) of the Qld sentencing legislation that a sentence of imprisonment should only be imposed as a last resort, and that a sentence that allows the offender to stay in the community is preferable.

The judge reviewed a number of legal authorities and outlined the several factors to be taken into account, including the maximum penalty, the offenders characteristics, impact on the victim, cooperation of the offender, any mitigating factors and the prevalence of the offence.  The Judge also took into account, as required, the risk of deportation of Mr Hussaini and Mr Karimi (they were each Afghani nationals and permanent residents of Australia) and the impact of any sentences upon their dependants.  In Mr Hussaini’s case, regard was had to psychiatric and psychological reports.

Reasonably practicable

The Judge noted:

• “Mr Hussaini admitted that there were no safety systems in place.”
• “the moral culpability of each is high. The defendants knew of the potential consequences of the risk, which were catastrophic.”
• “Steps to lessen, minimise or remove the risk posed by mobile plant were available. Those steps were neither complex nor overly burdensome.”
• After the incident, BAR engaged a risk manager to “develop a risk management system to ensure it complied with its duties and any notices issued under the Work Health and Safety Act 2011 (Qld). The report indicates that apart from a system of supervision, the measures consisted of little more than the installation of signage, plastic bollards and marked exclusion zones. The cost of implementing such measures was quite modest.”
• “The failure by the defendants to control the risk posed by mobile plant was consistent with their attitude to safety at the workplace. By their pleas of guilty Mr Hussaini and Mr Karimi accept that they knew of the risk to the safety of their workers, but consciously disregarded that risk.”
• “The offending by Mr Hussaini and Mr Karimi was not a momentary or isolated breach. The business commenced operation in 2016. By the commencement of 2018, it had grown in size, in terms of employees, turnover and the presence of mobile plant, to the point where the conduct of Mr Hussaini and Mr Karimi, in not taking steps to ensure the risk posed to workers was controlled, amounted to recklessness. The period of offending alleged in counts 2 and 3 is between 1 January 2018 and 17 May 2019.”
• “The extended period of time over which workers were placed at risk is relevant to an assessment of the criminality of” of BAR.
• “There was no real attempt to assess or control the risks posed by mobile plant.”
• They “failed to effectively separate pedestrian workers and mobile plant, and failed to effectively supervise operators of moving plant and workers.”
• They failed to ensure that BAR “controlled the interaction of mobile plant and pedestrians, failed to ensure that Brisbane Auto Recycling Pty Ltd effectively separated pedestrians and mobile plant, and failed to ensure that Brisbane Auto Recycling Pty Ltd effectively supervised operators of moving plant.”

Sentencing

The Judge concluded “the gravity of the offending and the moral culpability of each defendant is high.”  The Judge relied on sworn statements provide by the directors – “Mr Hussaini swore an affidavit setting out his background, personal circumstances, community involvement and other matters. Mr Karimi swore an affidavit setting out his personal circumstances, background and contribution to the community.”

The Judge observed “Mr Hussaini and Mr Karimi have worked exceptionally hard and built up a successful business with a turnover in excess of $2.5 million a year. The business provides employment for up to eight persons, predominantly also former refugees.”

As to prevalence, the prosecution relied on this information: Queensland Workplace Fatalities

Year	Total number of Workplace, Work Related Deaths	Forklift related Workplace Deaths
2017	44	1
2018	39	1
2019	28	2

That BAR did not have the capacity to pay a fine did not preclude an appropriate fine. The Judge noted BAR would most likely go into liquidation and that the directors would be able to restart business with financial assistance.

In relation to the directors, the Judge took several matters into account and made a detailed assessment.  His Honour concluded a sentence of 10 months suspended on each defendant was appropriate.

Northern Territory

Had this incident occurred in the Northern Territory, then, under the section 34B(1) of the (NT) Work Health and Safety (National Uniform Legislation) Act, which came into force in the NT on 1 Feb 20, assuming you have a health and safety duty, you are a PCBU or officer – and if the following are proved beyond reasonable doubt, and no defences are available, then you would be guilty:

• you failed to eliminate or minimise the risks to health and safety, so far as is reasonably practicable (you were not constantly vigilant, proactive (and not reactive) and did not take all practical precautions to ensure safety in the workplace; you cannot demonstrate the costs, difficulty or trouble occasioned by the measures to deal with the potential for serious risk to persons, significantly outweigh the risk);
• your conduct breached the health and safety duty and you meant to engage in that conduct;
• the breach caused or substantially contributed to death of an individual to whom the health and safety duty was owed; and
• you were aware of the substantial risk that the result will happen and having regard to the circumstances known to you, it was unjustifiable to take the risk. Or your conduct involved such a great falling short of the standard of care (that a reasonable person would exercise in the circumstances involving a high risk of death) that the conduct merits criminal punishment.

For further information please get in touch with our lawyers at RLA

office@rousssoslegaladvisory.com
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GPO Box 457 Darwin Australia 080

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